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Claro y Cia

The Chilean Banking Act provides that deposits and other repayable funds of any type received or taken by banks are subject to strict banking secrecy and no information regarding them may be disclosed or furnished to any person other than the depositor itself, or to its agents or duly appointed representatives. Any contravention of this prohibition constitutes a criminal offence.

All other banking transactions are subject to a lesser form of confidentiality. These other banking transactions may be disclosed by banks to any third party evidencing a legitimate interest in them, provided there is no reason to believe that knowledge by that third party may result in pecuniary loss to the bank's customer. Additionally, and to the extent they comply with this restriction, professional firms engaged in the evaluation of a bank may also request and obtain detailed disclosure of such transactions. Disclosure of institutional information — as opposed to individual customer's information — is not protected by the secrecy provisions of the Chilean Banking Act. Banks should keep under strict confidentiality all information relative to checking accounts maintained by their customers and can only make disclosures to the account holder or its agents. This duty imposed on banks is a form of confidentiality tantamount to secrecy.

Chilean courts, however, may order the disclosure or audit of specific transactions or of specific entries of a banking account in the course of civil or criminal actions affecting the account holder.

Those that fail to comply with or violate the bank's secrecy duty may be criminally prosecuted and together with the bank itself may be held liable for damages. Additionally, the bank may be subject to administrative sanctions that range from a mere rebuke to fines, depending on the specific circumstances as determined by the Superintendency of Banks and Financial Institutions, which is the government agency in charge of enforcing the Chilean Banking Act.

Cristián Eyzaguirre & Eduardo Puigrredón

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