This country-specific Q&A provides an overview of Fintech laws and regulations applicable in Chile.
What are the sources of payments law in your jurisdiction?
Since Chile is a civil law country, the primary source of payment laws are legislative enactments of the National Congress. In Chile the legal framework for payment services are based on the following laws:
A) Constitutional Organic Law of the Central Bank of Chile (Ley Orgánica Constitucional del Banco Central de Chile or “LBC”), which empowers the Central Bank of Chile (Banco Central de Chile or “BCCH”) to establish all necessary and applicable regulations to allow the use of new payment methods, in order to ensure the stability of the Chilean payments system. BCCH is expressly empowered to enact rules that regulate companies engaged in the issuance or operation of credit cards, or any other similar system payment method or system.
B) General Bank Law (Ley General de Bancos or “LGB”), which establishes that the Financial Market Commission (Comisión para el Mercado Financiero or “CMF”) is the administrative body responsible for the supervision of banks and financial institutions in Chile. Likewise, CMF is empowered with the authority to inspect and supervise companies whose business model consists of: the issuance or operation of credit cards, payment cards with provisional funds, or any other system similar to the aforementioned means of payment; provided that the companies routinely contract with consumers regarding the consumer’s financial obligations, such as the issuance of credit cards to consumers, or are within a sector that is regularly involved with the general public.
C) Compendium of Financial Standards (Compendio de Normas Financieras or “CNF”) of the Central Bank of Chile: In exercising its powers, BCCH issued the following financial standards and rules regarding the means of payment:
a) Chapter III.J.1: Issuance of payment cards,
b) Chapter III.J.1.1: Issuance of credit cards,
c) Chapter III.J.1.2: Issuance of debit cards,
d) Chapter III.J.1.3: Issuance of payment cards with the provision of funds,
e) Chapter III.J.2: Payment card operation.
D) Law N° 20,950: In October 2016, the National Congress authorized the issuance and operation of payment cards with provisional funds by non-bank entities.
Can payment services be provided by non-banks, and if so on what conditions?
According to Law N° 20,950 non-bank institutions may issue and operate payment cards with provisional funds, as long as they comply with the requirements below:
A) Set up a special corporation with one exclusive purpose (Sociedades anónimas especiales de giro exclusivo);
B) Register in the Financial Market Commission’s Card Issuers Registry (Registro de Emisores de Tarjetas);
C) The company’s sole purpose, as stated in its bylaws, must be the issuance or operation of payment cards with provisional funds and related activities to achieve this specific purpose;
D) The company must satisfy the minimum capital and fund reserve amounts established by law;
E) Establish a liquidity reserve;
F) Establish risk management and control policies;
G) The company must keep at all times: the account holders’ application for a card, and maintain a separated accounting of the funds provided to the holders;
H) Provide CMF with all material facts and information about the company and the company’s activities as such factual events occur or such information or circumstances become known to the company.
What are the most popular payment methods and payment instruments in your jurisdiction?
Cash is still the most common payment method in Chile, primarily because people over 45 years old still prefer paying in cash. However, debit cards have grown significantly since Banco Estado created an easily accessible bank account associated with its debit card (Cuenta Rut). The Cuenta Rut bank account began operating in 2006 and today has more than 7 million customers nationwide, a surprising figure that shows the massive backing it received from the public. The large number of users shows the influence such account has had on the expansion of various payment methods other than cash, such as debit cards, to pay at stores and using it to make online payments.
Another major change, supporting both the continued increase in the use of cards and the use of digital payment platforms, was the enactment of Law N° 20,950. As noted above, this law authorized non-bank entities to issue and operate payment cards with provisional funds. Thus, it created the opportunity for new players to enter the payment system industry in Chile, making room for Fintech companies to enter the financial market.
Finally, since April of 2020, the Chilean Card Payment System has shifted from a 3 party scheme to a 4 party transaction model. This model is regulated in Chapter III.J.1: Issuance of payment cards of the Compendium of Financial Standards issued by the Central Bank of Chile. In this new system, the acquirer and the issuer have been separated. Therefore, the scenario is as follows: a) Customers; b) Merchants; c) Acquirers (Payment processor company, mainly represented by Transbank) and d) Issuers (Banks). Even though, this was a necessary change to catch up with the rest of the OCDE regulations, the implementation process hasn’t come without problems. The immediate effect of separating the acquirer and the issuer was an increase in the commissions paid by the commerce and ultimately by the customers. Because of this, the Chilean government has announced a law in which interchange fees for national transactions with payment cards, between the Acquirer and the Issuers, will be subject to maximum fees, differentiated by type of card, whether credit, debit or prepaid. This initiative establishes that these maximum fees will be determined by the Central Bank, safeguarding the proper balance between issuing and accepting payment cards.
What is the status of open banking in your jurisdiction (i.e. access to banks’ transaction data and push-payment functionality by third party service providers)? Is it mandated by law, if so to which entities, and what is state of implementation in practice?
Today, the use of the open application programming interfaces (APIs), that enables third-party developers to build applications and services around existing financial institutions, is not a current reality in Chile. Nevertheless, Banks in Chile, through the use of APIs, do share their client’s personal information with third-party service providers across private agreements, without a mandatory regulation that governs it. Thus, the parties operate under the rules of the free market economy and without government regulation.
However, there is a growing belief that Open Banking represents the future of banking. The idea is based on the premise that what’s intended is a collaborative and integrated financial services ecosystem. A financial service ecosystem where the processing of consumer’s personal information, such as financial information, is aimed primarily to improve the user experience, through a diverse range of services.
In recent months, the CMF issued a document called “White Paper: general guidelines for crowdfunding and related services” (“White Paper”), which indicates the general guidelines that the legislator should take into consideration when regulating Fintech companies.
Although the White Paper mainly focuses on crowdfunding, it also gives some general guidelines about online banking, especially regarding robo-advisors. The White Paper states that the regulation to come must establish the obligation to inform the client correctly or, in some cases, must prohibit certain activities in which conflicts of interest arise or are likely to arise, or where the objectivity is questioned. The White Paper also affirmed that it is appropriate to establish requirements for accreditation or suitability requirements for these service providers.
Today Chile is the initial stage of implementing Open Banking. In this regard, the lack of regulation means there is an absence of barriers to hinder the entry of new actors but, on the other hand, it also plays against the financial industry and Open Banking since the same lack of regulation generates a certain level of distrust and uncertainty in the public. This is an issue in which the legislature must work together with the private sector, or at least with the concerns of the private sector in mind so that new laws that may appear, aren’t dysfunctional and don’t delay the significant progress that Fintech companies are having in Chile.
How does the regulation of data in your jurisdiction impact on the provision of financial services to consumers and businesses?
Chilean regulation on personal data protection is mainly treated in Law N° 19.628, which fails to have a significant impact on the provisions of financial services. Although this law regulates the transmission, treatment and storage of personal data, it’s deficient at granting adequate protection to personal data, since it doesn’t conform to OECD standards, and is decidedly less strict than the European General Data Protection Regulation (“GDPR”).
For this reason, there is currently a bill submitted to the Chilean Congress that seeks to extend privacy protections. The proposed bill assigns the Transparency Counsel (“CPLT”) the task of overseeing and supervising while also facilitating the beneficial and innovative uses of the data in evolving business and technological environments. And also focuses on establishing specific requirements in the consent the data owner must grant, for companies to able to process it. Therefore, the more private and intimate the data is, the clearer and specific the consent of the owner shall be.
What are regulators in your jurisdiction doing to encourage innovation in the financial sector? Are there any initiatives such as sandboxes, or special regulatory conditions for fintechs?
Currently, in Chile, there are no specific regulations of sandboxes or any regulation that allows for these kinds of scenarios. In fact, we must consider that sandboxes appear as a less burdensome regulatory environment for Fintech companies. However, in a country where there is no regulation for the Fintech world, it will be challenging to find a “less” regulated instance.
In general, in Chile, there’s no limitation for innovation or the emergence of new financial services. The exceptions are financial services specially regulated by law, such as banking, fund management and securities brokerage.
The White Paper proposes that the regulatory framework generated in the future should be neutral and proportional. The regulatory framework should be one in which the requirements are differentiated and proportional depending on the risks inherent to the particular activities carried out by each entity. Understanding neutrality as a regulation that should not generate asymmetries between those companies high in technology and those that use technology to a lesser extent.
Do you foresee any imminent risks to the growth of the fintech market in your jurisdiction?
Currently, regulatory uncertainty is what presents the greatest risk for the growth of the Fintech industry in Chile. The White Paper is a good step forward in developing a regulatory framework that considers the importance of innovation. In order to develop efficient regulations for the Fintech industry, the following principles must be observed: proportionality and neutrality (both defined in response to question 6 above); flexibility (which is the possibility that different business models may coexist and change over time without the need to continually adapt the regulation); and modularity (meaning it recognizes the possibility of disaggregation of the value chain).
What tax incentives exist in your jurisdiction to encourage fintech investment?
At the moment in Chile, there are no tax incentives to promote Fintech investment. Investments in Fintech are treated like any other type of investment.
Which areas of fintech are attracting investment in your jurisdiction, and at what level (Series A, Series B etc)?
There are a number of start-ups present in each financial services sector. The main one being, the payments and remittances sector, (Mach and Khipu regarding national remittances and Global 66 operating with international money transfers), followed by the crowdfunding and lending sectors (Cumplo, 2ble impacto).
In Chile, we already have companies that have raised Series C funding such as ComparaOnline, an insurance tech company that has raised more than $30 millions (USD) according to some public databases. Global 66, has recently gone through a successful equity-based raise of capital, raising over $4.3 millions (USD) for 25% of the company’s equity, from both Chilean and foreign investors (mainly UK). There are also several other Fintech companies that have raised Series A, such as Cumplo, Omnibnk, Jooycar, and others raising seed round, like Fintual.
If a fintech entrepreneur was looking for a jurisdiction in which to begin operations, why would it choose yours?
Within the Latin American region, there are fewer obstacles to begin operations than in Chile. In addition, it’s essential to highlight the role of the Corporation for the Promotion of Production (Corporación de Fomento a la Producción or “CORFO”), a Government Agency, under the Ministry of Economy, Development and Tourism of Chile that seeks to improve the competitiveness and effective diversification of the Chilean industry, through the promotion of investment, innovation, and entrepreneurship. CORFO works in different areas of interest by bringing together various programs and subsidies, such as innovation, entrepreneurship, investment and financing, amongst others. Through this institution, both Chileans and foreigners may obtain funding, credit, and technical support for entering the Chilean market.
CORFO’s most known program is Start-Up Chile. Start-Up Chile is the leading business accelerator in Latin America. It was created by the Government of Chile to promote global technology ventures to use Chile as a platform to scale regionally and globally. Nowadays, Start-Up Chile is one of the largest accelerators in Latin America, offering financing and support alternatives for Chilean and foreign companies, with a functional product to use Chile as a platform for growth.
Finally, it should be noted that the Chilean economy is stable and strong due to the low inflation rates, and little corruption index in comparison to other Latin American countries. The Chilean free market system promotes competition and commercial openness, while the authorities take care of fiscal discipline. This sustained growth has allowed the country to sign Free Trade Agreements with markets that represent almost two-thirds of the world’s population. This wide network of treaties has given rise to true international cooperation and production chains that are attractive to foreign Fintech entrepreneurs.
Access to talent is often cited as a key issue for fintechs – are there any immigration rules in your jurisdiction which would help or hinder that access, whether in force now or imminently? For instance, are quotas systems/immigration caps in place in your jurisdiction and how are they determined?
In 2017, Chile introduced a tech visa which simplifies the immigration procedure, specifically focused to attract advanced human capital from abroad for the development of creative industries, advanced manufacturing, global services, and the technology industry in general.
Any foreigner may apply for the tech visa if:
(a) he/she is a professional or technician in the areas of science and technology, or has a proven experience in innovation in Chile or abroad; and
(b) is committed to be hired as a dependent worker by companies in the technology industry, which have either an invitation letter or a sponsorship from: InvestChile (the government agency responsible for promoting Chile in the global market); Start-Up Chile; or the Ministry of Economy.
The main advantage of this tech visa is that it has a fast track that allows the resolution in a term not exceeding 15 business days (this term may vary because of COVID-19), which will ultimately grant the Visa and Identity Card.
In Chile, there are no visa caps, so everyone who submits the documentation and meets the requirements will obtain a tech visa.
If there are gaps in access to talent, are regulators looking to fill these and if so how? How much impact does the fintech industry have on influencing immigration policy in your jurisdiction?
The Fintech industry in Chile hasn’t been able to have a substantive influence on migration policies since the executive and legislative powers have focused on attending the migration crisis in Latin America. The increasing flow of expatriates from Ecuador, Colombia, Haiti, Venezuela, etc., have diverted the attention of the Chilean government in favour of managing this humanitarian situation without leaving space on the agenda to introduce changes to the existing visas, or to create new visas that favour access to talent (aside from the tech visa).
What protections can a fintech use in your jurisdiction to protect its intellectual property?
In Chile, Fintechs may protect their intellectual and industrial property submitting applications to National Institute of Industrial Property (Instituto Nacional de Propiedad Industrial or “INAPI”). This allows them to protect, among others, their brands, patents, utility models, vegetal varieties, industrial designs.
Although a Fintech company is not required to register any of the above, it is useful to do so. When registering intellectual and industrial property rights, a Fintech acquires an exclusive right of exploitation in Chile, forbidding third parties to use it without authorization. Nevertheless, registering will imply that the intellectual or industrial property will be considered a public record. In case of trademarks, the protection lasts ten years from registration approval, with the ability to renew it for the same period, for an indefinite number of times.
Regarding patents, the requirements are higher than those established for trademarks, since in this case, the Fintech will need to demonstrate a novel character, an inventive level, and a possibility of industrial application. As to protection periods, INAPI will issue a protection for patents that shall last 20 years, without the possibility of renewal.
For other property rights, like industrial designs, the protection will last ten years. The protection of intellectual or industrial property rights does not include their registration, but the possibility to oppose it when being applied by third parties, which can end in a trial at the Industrial Property Court.
Finally, if a Fintech wants to protect copyright, then they shall register with the Direction of Libraries, Archives and Museums (“DIBAM”), which is in charge overseeing the protecting such rights.
How are cryptocurrencies treated under the regulatory framework in your jurisdiction?
There is no specific regulation of cryptocurrencies in Chile. Cryptocurrencies are considered non-regulated financial assets. Since there is no specific regulation, the applicable legislations are the Civil Code and Commercial Civil Code, which each regulates contracts between private parties.
How are initial coin offerings treated in your jurisdiction? Do you foresee any change in this over the next 12-24 months?
There is no specific regulation in relation to Initial Coin Offerings (ICOs) in Chile, and the White Paper does not mention initial coin offerings. Furthermore, there is no legislative project or draft project concerning ICOs and we do not foresee that it will change in the near future.
Are you aware of any live blockchain projects (beyond proof of concept) in your jurisdiction and if so in what areas?
There are a range of different projects to integrate blockchain into all sorts of areas, from health with a blockchain-prescription system, to public entities, and financial institutions as a way to improve security and productivity.
Since, 2018, The National Comission of Energy has been using the Ethereum Blockchain to track and record energy data such as prices and storage, allowing for a more secure storage of all records.
Also, Santiago’s Stock Exchange (Bolsa de Comercio de Santiago) has already started to adopt blockchain protocols in its national and international transactions, which have resulted in more efficient operations. This project will be a consortium between the Santiago Stock Exchange, the Central Stock Deposit, and telecom company GTD. Furthermore, in 2019 the Chilean Central Bank, the Central Stock Deposit, along with Chilean Fintech QuantumX, successfully concluded a proof of concept for the emission of crypto-bonds. However, although the technology is compatible and is proven to accelerate the process of bonds emissions and provide a safer protection of information, the Central Bank will not yet start issuing bonds through this technology until there is an adequate legal framework for it.
Another project that uses blockchain technology is Godzillion, which is a decentralized crowdfunding platform that seeks to decentralize the financing of start-ups, unifying them with investors through tokens that represent stocks, thus creating a register of shareholders in Blockchain.
Finally, there are some cryptocurrencies exchanges, like the company Buda and CryptoMKT.
To what extent are you aware of artificial intelligence already being used in the financial sector in your jurisdiction, and do you think regulation will impede or encourage its further use?
Banks and Retailers in Chile have started to test AI for virtual customer assistants (chatbots) for improving user experience (UX), followed by the automation of their internal processes, such as anti-money laundering (AML) protocols.
Although it isn’t truly AI, robo-advisors are computer-based algorithms that process big data that may be submitted by the user, and then it recommends certain investment portfolios according to the user’s preferences (i.e. age, risk-aversion, expected cash returns, length of the investment, amongst others). Some examples of the robo-advisors are Fintual (which recommends diversified portfolios to investors and also serves as an investment platform) and FOL (which serves as a platform for mutual fund investments).
Currently, there is no legislation that impedes or discourages this industry. It has been favourable for innovation purposes that regulation is often behind technology. The only piece of prospective regulation is the White Paper.
Today, Chile is working on elaborating an Artificial Intelligence Policy which focuses on the enabling factors of artificial intelligence, the development and research of AI, plus the ethical and regulatory aspects of its use. In our opinion, regulation will be neutral – neither impeding nor encouraging – the use of IA in Chile.
Insurtech is generally thought to be developing but some way behind other areas of fintech such as payments. Is there much insurtech business in your jurisdiction and if so what form does it generally take?
Given the difficulties and complexity of managing an insurance business, most start-ups have decided to focus on some parts of the value chain and partner with insurers and reinsurers. The most common way in which Insurtech start-ups operate is as advisors for insurance companies for quoting and comparing which insurance is more suitable for the needs of the client. Thus, connecting the user with an insurance provider so that the acquisition of insurance begins with a request through the platform or website. This is what ComparaOnline.com does, since it recommends determined insurances to each client, based on their specific profiles and needs.
Another example of Insurtech in Chile is Jooycar, a fast- growing Chilean company that has been disrupting in the auto insurance market by providing car connected platforms and services, using telematics and machine learning to develop Usage-Based Insurance (UBI) products for commercial users, as well as personal and individual users.
Are there any areas of fintech that are particularly strong in your jurisdiction?
According to Finnovista Fintech Radar 2019 payments and remittances platforms are the core of the Chilean Fintech industry, representing 26% of the market. This includes companies like PagoFacil, Global 66, Mach, Flow and Amipass. There has been an increasing demand for payment solutions for consumers that don’t qualify for commercial banking solutions (i.e. credit cards).
On the other hand, Enterprise Financial Management (“EFM”) solutions, represent 17% of the industry which provide automated solutions for managing operations within companies.
What is the status of collaboration vs disruption in your jurisdiction as between fintechs and incumbent financial institutions?
The relation between Fintechs and incumbent financial institutions is at an early stage, but growing. Chilean companies tend to develop their own technology, i.e. BCI Bank launched MACH, its mobile wallet to send and receive cash quickly and has its own virtual prepaid card. On the other hand, Grupo Consorcio (a leading financial services company and the largest insurance group in the Chilean market) has invested $500 thousand (USD) in Chilean Fintech Pago Fácil, an online payment platform that allows customers to make payments process in a quick and easy way. Nowadays, we can only see few cases of incumbent financial institutions, such as the aforementioned, working together with Fintech, but it’s something growing.
To what extent are the banks and other incumbent financial institutions in your jurisdiction carrying out their own fintech development / innovation programmes?
Banks and financial institutions have not been keen to show the public their support to Fintech development, and have instead acquired tech companies to complement their platforms. However, there are some examples of banks working together with Fintech: As we mentioned, BCI Bank launched the mobile app Mach and the investment of Grupo Consorcio in Pago Fácil. Furthemore, Santander has partnered with One Pay FX. This is a blockchain based payment solution, which is currently being used as a digital wallet, but in the future it’ll also be used for international money.
Are there any strong examples of disruption through fintech in your jurisdiction?
Currently, there are no big disruptions in the industry. The major operators (commercial and investment banks, insurers, and brokers) operate under strict regulations, which represent a strong entrance barrier for smaller competitors. Thus, small Fintech companies are often being acquired by these major players to be incorporated in the major financial institutions’ platforms.
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