General Standard N° 434 (Financial Market Commission)

Con fecha 13 de febrero de 2020, la Comisión para el Mercado Financiero (CMF) dictó la Norma de Carácter General N° 434 que tiene por objetivo autorizar mecanismos para el uso de firma electrónica en la suscripción de las actas de sesiones del directorio de las sociedades anónimas fiscalizadas por esa Comisión.

Said norm establishes as mechanisms for the subscription of the minutes those that comply with the conditions contemplated in Law N° 19.799 on electronic documents, electronic signature and certification services of said signature, which are:

i. Simple electronic signature, which in accordance with the provisions of letter f) of article 2 of said law, corresponds to any electronic sound, symbol or process, which allows the recipient of an electronic document to at least formally identify its author; and

ii. Advanced electronic signature, which according to the established by letter g) of article 2 of said law, is that certified by an accredited provider, which has been created using means that the holder keeps under his exclusive control, so that it is only linked to the same and to the data to which it refers, allowing the subsequent detection of any modification, verifying the identity of the holder and preventing him from ignoring the integrity of the document and its authorship.

For the purposes of verifying the identity of a director who electronically signed the minutes using a simple electronic signature, the electronic sounds, symbols or processes used to do so must be previously agreed by the board of directors. Likewise, the general manager, or who has officiated as secretary in the respective session, must record when incorporating the minutes in the book that is maintained for these purposes, of the fact that said electronic signature corresponds to the director who appears subscribing the respective minutes.

Finally, there are different models of simple electronic signature, among which we can highlight the following [1]:

a. Indirect Electronic Signature (username / password): consists of the identification and verification of a person’s identity, through a username and password (personal use key), in a system that meets a set of minimum characteristics.

b. b. Electronic Signature in E-mail: consists of sending a signed (and possibly encrypted) email, in which one or more documents are attached, such as attachments. In this model, there is an issuer of the document (which is not necessarily its author) and a recipient of the document.

c. Electronic Signature in Document: consists of sending electronic documents, not necessarily through email, containing a signature within its structure.

We note that, without prejudice to other modalities that may be applicable for this purpose, currently Adobe Acrobat documents (PDF), and Microsoft Office suite documents, from version 2000 onwards (this is MS Word, MS Excel and MS PowerPoint) support including within them a simple electronic signature, subject to the digital certificates that must be generated internally in each entity that wishes to implement the model.

[1] The models mentioned are those suggested by the Comité de Firma Electrónica Simple (Simple Electronic Signature Committee), which was created from the Comité de Normas para el Documento Electrónico (Standards Committee for the Electronic Document).