Fintech Law & Sandbox
As of March 2021, there is no Fintech Law in Chile. The government (Ministry of Finance) has been working in recent months on what should be the bill that will regulate the Fintech sector, including the development of Open Banking. The first stage of this work includes collecting quantitative evidence of the evolution of Fintech companies that participate in the Chilean market, identifying the entry barriers and the risk involved, and having a better assessment of the potential benefits of these new business models. At this time, the government is working on this first stage in order to propose a new regulatory framework, which will result in a bill, the second stage of the Ministry of Finance’s task in this matter. Authorities have said the goal is to have the legal proposal ready by the first quarter of 2021.
What about Regulatory Sandbox? At an international level, regulatory sandboxes have been used as a framework to promote the development of Fintech companies (UK in Europe and Mexico in Latin America, for example). This framework offers advantages in environments where (i) financial services can only be carried out as permitted by current legal regulations and (ii) the regulations applicable to a new service have NOT been technology neutral. In Chile, with the exception of certain financial services specially regulated by law (securities brokerage, bank transfer, fund management, etc.), as a general rule, there are no limitations to innovation or the emergence of new financial services. Consequently, it would seem that in Chile a regulatory Sandbox would not present the same advantages as it does for other jurisdictions, since currently innovation can arise without the need for a law or the supervision of the authority. However, this alternative has not been expressly dismissed by the Chilean authorities.
Open Banking
As mentioned before, the Fintech bill may include guidelines on Open Banking, but it is unclear what the approach will be.
In Chile there is a slight delay in comparison to more advanced countries, particularly with regard to data protection regulation. There is a bill in Congress that will raise the standards to what exists in Europe today (GDPR), which is expected to be enacted in 2021.
In March 2020, the Association of Fintech Companies of Chile (FinteChile) prepared and delivered to the government, banks and regulators an open banking protocol indicating the principles required for its correct implementation:
- User-centred design;
- Promotion of innovation;
- Incentivization of competition; and
- Efficiency and proportionality (guaranteeing data privacy without excessive costs or complexity).
The protocol indicated that, to reach an agreement on the use of APIs that allow the development of new, better and more efficient financial products, it is necessary to achieve the following:
- User confidence in the open banking environment. This translates into the confidence that users have in the control they have over their data (consent to share the data, authentication when processing data to avoid security breaches (two-factor authentication - Strong Customer Authentication (SCA), remedies in case of possible breaches in the security or protection of the data);
- Confidence on the part of the current players (Minimum security standards and technology neutrality)
Crowdfunding
In February 2019, the Chilean Financial Market Commission (CMF) issued a white paper containing general guidelines for the regulation of Crowdfunding and its related services (such as the custody of financial instruments and financial instrument transaction services).
As indicated in the white paper, the following would be regulated accordingly:
- Crowdfunding platforms,
- Robo-advisors and scoring, and
- Alternative trading systems.
Said document established the general criteria that all regulations on this matter must consider (proportionality, neutrality, comprehensiveness, flexibility and modularity) and indicated the following components that a regulatory proposal must contain:
- Expansion of the regulated perimeter (and consequently, the companies that provide this type of services are subject to the control of the Financial Market Commission);
- Innovation hubs: implementation of formal regulatory support; and
- Implementation of proportionality through secondary regulation (through regulation, the CMF may dismiss certain requirements or replace them with less difficult ones).
In addition to the above, in November 2020 the CMF issued an enquiry regarding certain public offerings exempt from registration. The purpose of the enquiry is to facilitate access to financing for smaller companies by issuing and offering securities, which would be applicable to crowdfunding activity (subject to limits that must be established by the definitive rule).
Payments
In Chile there is only one major merchant acquirer (Transbank). This means that there is a 3-party model since the issuer (the bank) is connected to the acquirer (Transbank, in which almost all banks were partners).
In 2021, a new 4-party model will be implemented with new acquirers, which will not necessarily be linked to issuers. The transition to this new model has been complex since the authorities called to regulate the issue have had different positions on this matter (mainly the central bank, the competition authorities and the Ministry of Finance).
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