Costa Rica: Innovación en Gobierno Corporativo

Last Updated: 7 July 2017
Article by Neftalí Garro

El pasado 26 de septiembre, fue publicado en International Financial Law Review (IFLR) un artículo titulado Costa Rica: Corporate governance overhaul escrito por Neftalí Garro, socio de BLP experto en Derecho Corporativo & Comercial.

El artículo se debía a que el año pasado, en Costa Rica, el CONASSIF puso en consulta un borrador de este nuevo "Reglamento de Gobierno Corporativo" para todas las entidades supervisadas en el sector bancario, seguros, valores y pensiones.

El texto completo del artículo es el siguiente:

Costa Rica: Corporate governance overhaul

In the aftermath of the 2009 worldwide financial crisis or "great recession", international financial regulation bodies such as the Basle Committee on Banking Supervision and the International Association of Insurance Supervisors (IAIS) scrambled for answers to the question "What caused this crisis?" Although the causes were many, uniformly regulators came to the conclusion that lack of sound corporate governance practices was one of the root causes of banks, insurers and other financial services providers getting themselves into deep trouble. Boards of directors that were asleep at the helm, "runaway" CEOs, figurehead audit and risk committees, and a lack of checks on moral hazard, it was said, were to blame for many of the problems.

This led them to re-evaluate existing corporate governance rules and policies as applied in the financial services industries, specifically in the context of risk-based supervision, Basel III and Solvency II-type systems. Costa Rica has not escaped this phenomenon and recently Costa Rica's financial services regulator, the National Financial System Supervisory Council (known as "CONASSIF" for its acronym in Spanish), adopted a new set of corporate governance regulations that would replace existing rules for banks, insurers, pensions managers and securities market participants.

Key Features

On January 19th, 2016 CONASSIF published a draft regulation on corporate governance. Under Costa Rican law, before adopting any new regulations CONASSIF must publish a draft and hear observations from supervised financial entities and the general public. Sources close to CONASSIF indicate that the main drivers behind the adoption of these new regulations are the banking and insurance superintendents, both of which have been pushing for a modernization of Costa Rica's financial services regulatory system to bring it closer to a risk-based approach.

By way of summary, the following are some of the key features of the proposed regulation:

  • The new regulation would repeal the existing corporate governance rules adopted in June 2009. The rules currently in force have much more of a "checklist" or prescriptive nature, in that they spell out a series of requirements that all companies, regardless of their specific size, industry, scale and risks, must meet. CONASSIF deems that this approach is now passé.
  • CONASSIF has looked to the Organization for Economic Cooperation and Development (OECD) guidance papers on corporate governance and seeks to establish regulations based on principles rather than rigid checklists. To quote the draft, "regulation should provide orientation with respect to the supervisor's expectations in connection with the management of regulated entities and empower the board of directors, as the primary responsible party in charge of the business or entity, in the definition of the manner in which the principles contained in the regulation are satisfied."
  • Despite this intended focus, many in the industry feel that the draft regulations now proposed still carry a significant prescriptive weight, instead of a more flexible principles-based approach. This has been one of the main criticisms of the draft.
  • The regulations will apply to all sectors, including State and privately-owned commercial banks, non-bank financial entities, savings and loans associations and coops, currency exchanges, securities traders, mutual fund managers, securitization companies, insurers, reinsurers, insurance brokers and agents, pension fund managers, and, somewhat unexpectedly, non-financial securities issuers.
  • One of the main features that distinguishes these proposed regulations from the existing rules is the introduction of proportionality and differentiation criteria, which will allow each supervised entity, depending on it size, ownership structure, business and type of entity, to define its own risk profile and assess the potential impact of its operation on third parties.
  • The draft sets forth definitions of the duties of care and loyalty. Although both duties exist in Costa Rica as derived from basic commercial law principles, this would be an attempt put them black and white.
  • The draft provides for a series of duties incumbent upon boards of directors, sets minimum guidance on the profile that candidates should meet to be eligible to hold a position on the board, board member selection, the role of the chairperson, etc.
  • The new rules would require companies to define and state their risk appetite through a formal risk appetite statement, including quantitative and qualitative parameters. This would then need to be managed through effective risk management mechanisms, including lines of defence and an entity risk manager. A new compliance unit or function will also be necessary. Internal and external audit rules are also reinforced.
  • The new rules will require the adoption of a conflicts of interest policy.
  • The new rules refer specifically to the role and duties of various committees, including audit, risk, appointments, and compensation.
  • Guidance is provided on the duties and qualifications that a general manager must meet, as well as compensation, transparency and accountability parameters.
  • Special guidance is provided for corporate governance of financial groups or conglomerates.

What to Expect

CONASSIF is now in the process of reviewing all of the observations and input received from the various sectors affected by the proposed regulations. It is likely that the core of the regulations will not vary, since this new corporate governance approach is a key component of CONASSIF's risk-based supervision plan for upcoming years. There may be some changes in the wording of the rules to ensure that the above-referenced "principles-based approach" is not trumped by an overly prescriptive, checklist-type requirement. The other components of the risk-based supervision system (solvency and market conduct) have been updated (such as in the case of insurers, which have new solvency rules since 2014) or are in the process of being developed (such as certain market conduct regulations that are in the works – more to come).

The public consultations period has now passed and it is likely that the final version of the new regulation will be adopted this year. Although the new regulation would come into effect six months to a year after adoption (it is not clear if CONASSIF will stick to its initial six-month proposal or if the one-year period that banks and insurers have requested will finally prevail), financial services companies are already moving to get a grip on what this new regulation will mean. For now, companies would do well by familiarizing themselves with the proposed requirements, assessing how much their current corporate governance systems and culture would need to adapt in order to comply, and setting up a plan to ensure that the required adaptations can be done with the least amount of cost. Increased levels of board member duties and responsibilities may even prompt a shake-up of current boards of directors. Where companies do not yet have a risk manager, hiring may become necessary.


The ultimate goal is for corporate governance rules to aid businesses in operating more effectively while taking account of the interest of all of the company's relevant stakeholders. While understandable that local regulators are seeking to modernize existing corporate governance rules, many in the Costa Rican financial services sector wonder if Costa Rica requires state-of-the art rules that will come with a significant cost and administrative burden. With few exceptions, Costa Rica's financial entities have operated soundly for many decades with the existing corporate governance model. To use a metaphor, do Costa Rican drivers really need a Ferrari? Can one actually drive a Ferrari on Costa Rican roads? Or would everyone be better served with a decent Fiat or Toyota (less costly, easier to drive, equally effective in getting from point A to point B)?

Desde su publicación: Lo abordado en el artículo se ha llevado a cabo y el pasado 8 de noviembre quedó aprobada la versión final del nuevo Reglamento de Gobierno Corporativo para banca, seguros, valores y pensiones. La vigencia será 6 meses después de la publicación en La Gaceta.

Publicación original: Costa Rica: Corporate governance overhaul

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions