Author: BéndiksenLaw

The economic landscape in Colombia has seen better days. This is especially true regarding micro and small companies from Colombia that lack the financial muscle to face the challenges derived from the preventive measures taken by local governments against the pandemic.

Many of these companies have faced abbreviated reorganization or simplified liquidation processes, which were created by Decree 722 of 2020 for companies that have equity equal to or below 5.000 monthly minimum legal wages. The increase in these types of processes has generated an additional burden on the judicial system.

Therefore, the Superintendence of Corporations has added new functionalities to their insolvency module, “MI” for its initials in Spanish. The MI is a virtual tool with artificial intelligence that helps in the managing of insolvency processes in a more agile and efficient way. Previously, the MI only accepted applications for the admission of emergency reorganization agreements. Now, it will be possible for users of the program to request the admission of simplified liquidation and abbreviated reorganization processes, in a simple way.

The Superintendent, Juan Pablo Liévano, explained that abbreviated reorganizations and simplified liquidation processes are designed to help the economic recovery and to effectively address the needs of small and micro companies. Therefore, IM is intended to be a very user-friendly platform.

BéndiksenLaw can counsel you, in both abbreviated reorganization and simplified liquidation processes as financial recovery tools.

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The difficult economic situation generated by the restrictions and closures of commercial establishments due to the COVID-19 pandemic has generated an increase in offers and promotions that are being advertised by companies as a commercial strategy to encourage consumers to buy their products and to build a bigger client base. Offers and promotions are a useful strategy, however, they are carefully monitored by the Superintendence of Industry and Commerce to guarantee that no consumer rights are being infringed or disregarded. For this reason, merchants and companies need to keep in mind certain requirements.

The Consumer Rights Law (Law 480 of 2011) on its article 5, num 10 states that an offer consists of the provisional offering, done by a merchant or company, of products that have more favorable conditions than the “standard” version of the product for free or at the same price point as the usual product. On the other hand, promotions are considered as the offering done by a merchant or company, of products that have extra content for free, for a reduced price, or products on the “standard” version that is offered for a discounted price. Also, the incentives for consumers such as raffles or contests fall under this category.

All commercial strategies or events that are carried out by a brand or a company that fall into the categories of offers or promotions need to follow certain parameters to avoid any infraction of consumer rights. According to the Superintendence, promotions and offers need to contain at least the following information:

• Full identification of the product, service or benefit that is being offered.
• Conditions of time, place, and manner to access the benefit.
• Terms and conditions for its delivery.
• Time frame of the promotion or offer.

It’s important that each of these points is strategically included on the publicity campaign to avoid any sanctions imposed by the SIC for inducing consumers to error. The inclusion of these elements is also important to avoid any inconvenience with consumers that could result in a reputational (goodwill) damage to the company

If the beginning date of the offer or promotion is omitted in the advert, it will be understood to start from the moment that it became known to the public. This means that the offer will be binding from that moment, even if the promoter is not ready for the beginning of the promotion or offer.

When the duration of the promotion is not stated in the advert, it will be in force until its revocation is made known to the public. In this case, it is necessary that the company announces the revocation using the same type of media and intensity that was used for the original campaign. This omission can generate an additional expense in publicity to announce the revocation. Additionally, it could lead to fines if the SIC considers that the type of media and the intensity were not the same between the two adverts.

Lastly regarding raffles and contests, it is important to note that if they are determined by chance, they fall under the category of promotional games, which is a category of games of chance. These promotional games have special regulations and are supervised by Coljuegos.

BéndiksenLaw can counsel you with the legal planning of your publicity campaigns to avoid sanctions.

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The national tax authority (DIAN) established the use of the new electronic signature through Resolution 080 of July 28, 2020. The advantages compared to its predecessor are; it is easy to obtain, its simplicity of use and it facilitates the fulfillment of obligations and administration of procedures before the entity. The best thing is that it can be done without leaving your home, through an online self-generation process. This is ideal due to the public health emergency generated by COVID-19.

The administration points out that the previous electronic signature will cease to be valid as of June 1, 2021. For this reason, the DIAN has committed itself to accompany users, through messages in digital media and direct communications, in the process of changing their electronic signature. However, it has noticed that there are still a large number of users who have not made the migration to the new electronic signature.

This electronic signature will be valid for 3 years with the intent that users will be able to fulfill their tax obligations in an easier and more agile way. Another novelty is that the electronic signature established in Resolution 080 is not solely for those individuals legally mandated to have an electronic signature but for the general public. Those who do not make this change before June 1 and need to carry out a procedure, they will be guided by the system to obtain their new signature, thus avoiding delays in transactions.

The tax authority also clarifies that if the user’s electronic signature was obtained before the publication of Resolution 080, it must be changed to the new one. If the electronic signature update procedure has already been carried out, in accordance with  Resolution 080, or if the signature is obtained after June 1, no additional procedures are required.

If you need help generating this new electronic signature, BéndiksenLaw can advise you in the process.

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Colombia regulated telework with Law 1221 of 2008. However, the law started to increase in relevance a year ago due to social distancing measures imposed due to the COVID-19 pandemic. This newfound popularity, along whit its current use, led to a debate before the Colombian Constitutional Court of the constitutionality of its Article 6. The Court rendered its decision on this matter on April 21, 2021.

The Article, for the most part, was declared constitutional except for an expression enshrined in the last section of the article. The text classified as unconstitutional by the Court limited the payment of overtime and night hours of teleworkers to those who performed their duties in a place where the work could be verified. This regulation imposes an extra burden on teleworkers, since telework is mostly or fully executed outside the physical space determined by the employer.

Law 1221 seeks to promote equality between teleworkers and workers. According to this principle, the Constitutional Court declared the previously mentioned expression as unconstitutional because this regulation created inequality between regular workers and teleworkers. The condition that work must be executed somewhere where it can be verified was deemed excessive, taking into consideration the existence of technological tools for time keeping that do not require the mobilization or on-site vigilance of the teleworker. The overtime could also be verified trough the correct and timely execution of duties imposed by the employer.

This decision opens the door for the adequate remuneration of overtime, night hours, and holiday hours of teleworkers without the requirement of on-site verification and in harmony with current labor regulations.

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