OM Weekly Digest 08/12/22
omwd 8 12 22
financial leasing

08/12/22 – Corporate

New regulations by the Ministry of Finance made amendments regarding leasing agreements, thus facilitating small loans and promoting the use of digital agreements which streamline financial services such as insurance activity.  According to the new regulations, leasing agreements may now be extended to intangible assets, not requiring the financial consumer to be physically present when opening small personal loans, plus banking satellite outlets will now be allowed to carry out certain insurance activities. Original source in Spanish

corporate practices

08/12/22 – Corporate and Compliance

Regarding corporate governance, the Best Corporate Practices Country Code fundamentally contains recommendations for shareholders’ rights acknowledgement in companies listed on the National Securities Registry (RNVE, in Spanish).    For this reason, Colombia’s Financial Oversight has encouraged the implementation of the Code, especially for the purpose of making timely decisions that represent benefits for owners and shareholders, regardless of their share. In its last Implementation Report, the Financial Oversight highlighted an increase in the level of implementation reported in recent years, reaching 61.4% in 2021.  This is clear evidence that best corporate governance practices have improved in the Colombian securities market and confirms that guaranteeing protection of shareholder rights and equitable treatment is a fundamental factor of Corporate Governance. Growth, expansion and development of the securities market is based on investor confidence generated through these best practices. Original Source in Spanish

arbitration clauses

08/12/22 – Litigation and ADR

On 28 July 2022, the Council of State declared the nullity of articles 80 and 81 of Decree 1829 of 2013, which established general provisions of arbitration agreement in standard form contracts.  This decision resolved a long-standing discussion regarding the effectiveness of arbitration clauses in contracts of adhesion. Formerly, article 43 of the Consumer Statute stated that mandatory arbitration clauses included in consumer-related contracts were deemed abusive. However, with the enactment of the 2012 Colombian Arbitration Statute, article 43 was repealed.    This led many scholars to interpret that it was possible to include arbitration in contracts of adhesion under Decree 1829. However, the High Court concluded that the elimination of the prohibition did not constitute a regulation on the matter addressed. Also, the law did not provide that parties to said contracts could freely agree on the arbitration clause.   Colombian law recognizes party autonomy in arbitration. Nonetheless, this principle does not fully apply to adhesion contracts given: (i) these contracts satisfy basic consumer requirements; and (ii) they are contracts predisposed by suppliers that limit contractual freedom as the consumer has no possibility of discussing its conditions.  Original source in Spanish

copyright choreography

08/12/22 – Copyright

Can dance moves on a copyright-protected choreography be individually protected? This is precisely the question the Central District Court of California is facing, following a lawsuit filed against Epic Games, Inc, creators of Fortnite, for including an “emote” (character move or gesture) in the famous video game in which a characteristic dance step of the registered choreography “How Long Choreography” is executed.

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