Is it Possible to Change the Domicile of a Colombian Company to a Foreign Country?

The Colombian Superintendence of Corporations recently resolved a query regarding the change of domicile of a company, specifically regarding the process of “cross-border re-domiciliation”. In this regard, it stated that this process consists of a company that is domiciled in a certain country, changing its domicile to another country without undergoing a liquidation process or merging or splitting-up with a foreign company. In accordance, it stated that in Colombia, national companies, those which have their domicile in the country, do not have the possibility of changing their domicile to a foreign country without carrying out any of the aforementioned processes. That is, there is no possibility to carry out a cross-border re-domiciliation. Likewise, it is also not possible for a foreign company to change its domicile to Colombia without liquidating, merging or splitting-up.

Following the above, the Superintendence stated that, according to Colombian legislation, it is only possible to carry out the company’s change of domicile within the national territory. However, bear in mind that this decision to change the company’s domicile requires a by-laws reform so it is necessary for the highest corporate body (shareholders’ assembly or meeting of partners) to meet and approve it. Subsequently, the reform must be registered in the Mercantile Registry. For this, it is enough for the companies to register the corresponding minute in which the approval of the decision to change the domicile of the company is recorded before the Chamber of Commerce of the domicile of origin. Finally, the Chamber of Commerce will be in charge of transferring the inscriptions that are in its files to the Chamber of Commerce of the new domicile.

If you have any questions, please contact us.

Implementation of Equity Impairment and Insolvency Risk Indicators

Recently, the Colombian Superintendence of Corporations referred to the obligation of implementing equity impairment and insolvency risk indicators in the analysis of companies’ financial information. In this regard, it recalled that, in accordance with the provisions of Law 2069 of 2020 and Decree 1378 of 2021, the directors of commercial companies have the obligation to monitor the financial statements, financial information and projections of the company. Likewise, they have the obligation to determine if the indicators established in the aforementioned Decree 1378 on equity impairment and insolvency risks are applicable to the company, in accordance with its business model and the commercial sector in which it develops its corporate purpose. If these indicators are applicable, they are of mandatory implementation and doing so demonstrates proper management by the corporate directors. Therefore, in the event that they are not implemented when there is an obligation to do so, it will be considered a breach of the directors’ duties, who may be liable for damages caused to the company, to partners or to third parties by said breach.

In addition, the superintendence established that, once these indicators are implemented and analyzed, the following conclusions can be reached: (i) that there is no equity impairment or insolvency risk, (ii) that there is both equity impairment and insolvency risk, (iii) that there is equity impairment but no insolvency risk, or (iv) that there is no equity impairment but there is risk of insolvency. Additionally, it specified that the implementation of these indicators is not a simple formality, since the results of the analysis must be shared with the company’s highest corporate body (shareholders’ assembly or meeting of partners). The foregoing, in order to allow it to clearly know the company’s situation and risks and to take the decisions it deems appropriate based on the information provided by the company’s directors.

If you have any questions regarding this matter, please contact us.

Colombian Superintendence of Corporations Issues a Guide on Conflict of Interest

Recently the Colombian Superintendence of Corporations issued a guide about the conflict of interest in which the directors of a company may be involved and the way in which they must act in case this happens. In this regard, the Superintendence recalls that, according to article 22 of Law 222 of 1995, the following are considered directors: (i) the legal representative, (ii) the members of boards of directors, (iii) the liquidator, (iv) the business manager, and (v) those who, in accordance with the bylaws, perform administrative functions. Additionally, the jurisprudence of this superintendence has understood that the alternates of the aforementioned persons when they act in such a capacity due to temporary or definitive absences of the principals, will also be considered directors. Finally, Law 1258 of 2008 establishes that those persons who are not directors of simplified joint-stock companies but who interfere in management, administration or direction activities of the company, must also comply with the directors’ responsibilities and may be subject to the sanctions applicable to them.

Additionally, the superintendence recalls that the directors’ actions must be governed by the principles of good faith, loyalty and diligence of a prudent businessman and explains each of these concepts. It is for this reason that directors must refrain from participating in activities in personal interest or that of third parties that involve competition with the company, as this would imply a conflict of interest. It is understood that there is a conflict of interest when the directors’ neutrality in decision-making processes may be affected because the interests of the company and those of the director or third parties that they may want to favor concur, as happens in the event that they want to do business with themselves or with companies represented or controlled by their relatives.

In accordance with the above, in the event that directors face a situation of conflict of interest or competition with the company, they must obtain an authorization from the highest corporate body to be able to carry out the intended activity, as long as the interests of the company are not harmed. For this, they must convene this corporate body and present all relevant information so that a decision in this regard can be made. Finally, this authority reiterates that in the event that a director does not refrain from participating in the aforementioned situations, interested parties or the Public Ministry may request: (i) the nullification and voiding of the performed acts, (ii) the restitution of matters to their previous state, (iii) sentencing the director to the payment of compensatory damages, and (iv) the imposition of pecuniary fines or penalties such as the inability to perform commercial activities. Additionally, a court of competent jurisdiction may order the aforementioned measures ex officio, that is, without the request of any interested party being required, when it is evident that these acts were carried out in violation of the directors’ obligations.

In case you have doubts regarding this subject, do not hesitate to contact us.

To download the complete guide (in Spanish), you can click here.

Appointment of the Replacement of the Legal Representative at Simplified Joint-Stock Companies (SAS)

On June 7, 2022, the Colombian Superintendence of Corporations referred to the resignation of the legal representative in Simplified Joint-Stock Companies (SAS, by its Spanish acronym) and the appointment of their replacement. In this regard, it recalled that what has been established in the bylaws regarding the company’s legal representation and the procedure that must be followed to choose a replacement in case of resignation, removal, permanent disability, death, termination of the stipulated term, or any situation that implies that the individual or company appointed ceases to hold this position, should be consulted first. In case nothing has been stipulated, the Colombian Commercial Code must be applied, especially the provisions about Stock Corporations.

In addition, article 28 of the Colombian Commercial Code establishes that the appointment of legal representatives of companies must be registered in the commercial registry. Thus, once the replacement of the legal representative is appointed by the highest corporate body, the company must proceed with the registration before the Chamber of Commerce of the minutes of the meeting in which this decision was made. Consequently, following the provisions of article 442 of the Colombian Commercial Code, until both the appointment and the registration of the minutes are made, the outgoing legal representative will remain in the commercial registry despite their resignation or any other situation that puts an end to their appointment. This is because the cancellation of the registration of their appointment is only possible through the election and registration of the new legal representative. In this regard, the Colombian Superintendence of Corporations refers to Judgment C-621 of 2003 in which the Colombian Constitutional Court established that the corresponding corporate organs must make the designation of the replacement within the term established in the company’s bylaws or, in the absence of stipulation in this regard, within 30 days following the circumstance that ended the previous appointment. Thus, during this period of time, the registered representative will continue to exercise their position with the fullness of the responsibilities and rights that this entails. However, in the event that this term is exceeded without the appointment of the corresponding replacement, the outgoing legal representative must notify the corresponding Chamber of Commerce of this situation. Once this notice is made, the outgoing legal representative withdraw from his duties and will no longer be liable towards third parties, even if their name continues to appear in the commercial registry.

Additionally, the superintendence specified that when the appointment of the legal representative’s replacement is not made in the aforementioned terms, the person designated as their alternate, if any, will be in charge of assuming their functions. In the event that an alternate has not been appointed, the statutory auditor may summon the highest corporate body to appoint the new legal representative.

On the other hand, shareholders of companies that are NOT part of the financial sector may request the Colombian Superintendence of Corporations to convene the highest corporate body when it has not met in the moments that the bylaws or the law indicate. However, for this request to proceed, the following must be taken into account:

  • For companies that are not supervised by the Colombian Superintendence of Corporations and that as of December 31 of the immediately previous year have: (i) assets equal to or greater than 5,000 Colombian legal minimum monthly wages or (ii) income equal to or greater than 3,000 Colombian legal minimum monthly wages, the request must be made by one or more shareholders representing at least 10% of the share capital.
  • For companies supervised by the Colombian Superintendence of Corporations, that is, those that as of December 31st, 2021 have assets or total incomes greater than 30,000 Colombian legal minimum monthly wages, either: (i) shareholders representing no less than one fifth of the subscribed shares, unless the bylaws indicate something different, case in which the provisions of these will prevail, or (ii) the company’s creditors and other public authorities in exercise of their legal powers, may submit this request. Additionally, this request will proceed not only when the highest corporate body has not met in the moments that the bylaws or the law indicate, but also when serious irregularities have been committed in the administration of the company that must be known or remedied by this body or when the number of shareholders mentioned above considers it necessary.

In case you have doubts about this or any other corporate issue, do not hesitate to contact us.