Doctrinal addendum for 2016

During 2015, the Superintendency issued multiple Official Notices in which it expressed its positions on several corporate matters. It would be advisable that, as it did with the aforementioned thesis, such entity rethink its position on other issues, as indicated below: Effects of statutory amendments before the corporation and third parties: In Official Letter 220-069762 of 05/25/2015, the Superintendency, when asked about whether it could be carried out -simultaneously-, an authorized capital increase and the consequent approval of the regulations for the placement of shares with respect to the new shares issued stated, contradictorily, that although Article 158 of the Code of Commerce establishes that the statutory reforms have effects among the associates from the moment they are approved "it is possible to approve the regulation for the placement of shares based only on the approval of the authorized capital increase of the corporation, provided that at the time the shares are offered they are already in reserve because the reform consisting of the increase of the referred capital has been solemnized and registered".

Clearly, since it is a share subscription agreement where the parties are the shareholder and the company, the prior registration of the authorized capital increase act is not required for the placement of the shares, since this would only be a requirement for enforceability before third parties.

Payment of a claim in favor of a liquidated company: In Official Letter 220-001819 of 01/14/2015, when the entity was asked about whether a company already liquidated (extinct) could receive the payment of a credence in its favor, the Superintendence answered that this was possible and that "(...) if the procedure chosen is the process of payment by consignment, it must be carried out identifying as receiver of the obligation the liquidator, who is responsible for the liquidation during 5 years counted from the approval of the final liquidation account, as established in Article 256 of the Code of Commerce (...)".

In the first place, the aforementioned article 256 does not establish that the liquidator may continue acting after the liquidation has been carried out; it simply establishes that the liquidator will be liable for his acts, before the partners and third parties, for a term of 5 years. Secondly, this thesis is contrary to the reiterated and peaceful position of the Council of State and the Superintendency itself that, once the liquidation has been carried out, the company, being extinct, cannot be subject to rights or obligations. This was established by the Superintendence itself in Official Letter 220-036327 of 05/21/2008, stating that "once the final liquidation account is registered in the commercial registry, the company disappears from the legal world, and therefore all its administrative bodies (...) consequently it cannot in any way continue acting, exercising rights and acquiring obligations".

Foreign companies can only incorporate a branch: In Oficio 220-046746 of 03/25/2015 the Superintendency opposed to reconsider this doctrine. The entity reiterated that this was not possible due to a restrictive interpretation of article 471 of the Code of Commerce, together with the argument that it was not conceivable that a branch, which is an extension of a foreign legal entity, would have segregated the assets assigned to its branch and its decision-making capacity in two independent establishments, which could have different outcomes. To insist on such a position would imply understanding that a foreign entity cannot have -simultaneously- two autonomous income attribution centers.