The Companies Law establishes the functions of the Commissioner or Supervisory Board, who has the right to inspect and supervise all the corporate operations of the companies, whose existence has been resolved in their bylaws, if they have considered it convenient. That is to say that at present the appointment of a commissioner, commission or surveillance council for the companies controlled by the Superintendence of Companies, Securities and Insurance is voluntary, being before the reform of the Companies Law by the Law of Modernization of the Companies Law (Official Gazette No. 347-3S, December 10, 2007), the appointment of a commissioner, commission or surveillance council for the companies controlled by the Superintendence of Companies, Securities and Insurance is voluntary. (Reference Companies Law: articles 118, 120, 274, unnumbered section of simplified stock companies after article 317, number 4 organization of the company, last unnumbered article of said section).
Consequently, as foreseen in the bylaws, this supervisory body must act without depending, under any circumstances, on the administrators; unfortunately, this necessary autonomy in the Ecuadorian business environment is not usual, in addition to the fact that many times, this position or function of high responsibility is exercised by people who are totally unaware of the aspects related to the administration in the social, accounting and financial areas.
The appointment of a corporate commissioner or whoever takes his or her place must be adapted to a changing reality, not only because of the responsibility that he or she has in accordance with the functions that are legally established in the Companies Law and the security or exclusive interest of the company that this supervisory body deems necessary, but also because aspects such as the global economy, business development and its social impact, corporate dynamics, among others, must also be considered.
This corporate dynamic has given rise to a multiplicity of new companies that, perhaps due to the nature of their business, require a real and even protectionist internal investment control system, which can generate added value within a framework of trust and transparency, and which, at the same time, contributes to a more effective institutional control and oversight exercise, through the reports issued for this purpose by the statutory auditors or their peers, through the reports issued for this purpose by the statutory auditors or their peers, to a more effective exercise of institutional control and vigilance, which allows to efficiently comply with the company's goals and objectives, also valuing the application of a correct risk management system and other constitutional aspects.
Against this background, it is considered important to proceed to regulate the qualification and registration of those natural or legal persons who are required to hold the position of corporate commissioners or similar entities through a regulation, without this meaning that the Superintendency of Companies, Securities and Exchange Commission (Superintendencia de Compañías, Valores y
On the contrary, it is the institutional obligation to ensure that the rights acquired within a commercial company, including those of third parties, are not affected by mismanagement or other incidental aspects, such as manipulation, abuse, fraud, etc., so that the actions of a professional and responsible supervisory body would make it possible to determine such aspects and perhaps even classify them only as “warning signs” or “urgent corrective action notices”.
The legal aspects resulting from the articles of the aforementioned suggested regulation must be observed in such a way that the principles of constitutionality and legality in force are not affected under any circumstances, within the framework of good corporate governance.
Gladis Alarcón, Ph.D.
Online Teacher
