State of the Region


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State of the Region

  1. 1. ACI’s 4th Latin American Summit on Anti-Corruption State of the Region May 15, 2014 Matteson Ellis Miller & Chevalier Chartered
  2. 2. 2 2 A Period of Dynamic Shifts Shifts in Risks • Economic slowdown in Brazil • Opening up of energy sector in Mexico • Political chaos in Venezuela • Economic expansion in Colombia & Peru Shifts in Laws • Brazil’s Clean Companies Act • Mexico’s strengthened public procurement and AML laws Shifts in Enforcement •Cooperation among enforcement officials (Embraer, BizJet) •FCPA reaches further (first action in Colombia; arrest of Venezuelan official as bribe receiver)
  3. 3. 3 3 General Corruption Risks in Latin American Countries 2012 Latin America Corruption Survey: •Half of all respondents believe their company has lost business to competitors making illicit payments in the region. •Only 28% of respondents believe anti-corruption laws are effective in the country where they work. Chile (78%) and the United States (70%) are seen as having the most effective laws. • 44% of respondents consider corruption to be a “significant obstacle” to doing business in the region © 2013 Miller & Chevalier Chartered
  4. 4. 4 4 General Corruption Risks in Latin American Countries 2012 Latin America Corruption Survey: • Most significant corruption challenges: Venezuela, Argentina, Mexico, Bolivia • Lowest overall government corruption: Chile, Uruguay, and the United States • Risks by area of government  Mexico (Police, Municipal/Local)  Venezuela (Judicial, Customs)  Argentina (Executive Branch, Customs)  Brazil (Legislative Branch, Police, Municipal/Local, Customs)  Colombia (Legislative Branch, Municipal/Local) © 2013 Miller & Chevalier Chartered
  5. 5. 5 5 Chile’s Ant-Corruption Legal Framework • Corporate Criminal Liability  Corporate Criminal Liability Law (Ley 20392, 2009)  Applies to money laundering, financing of terrorism, bribery of domestic and foreign public officials  Strong will to join OECD Anti-Bribery Convention • Compliance Program Certifications  Explicit credit for corporate compliance  A group of local firms are authorized to review and certify companies’ compliance programs • Conditional Suspensions of Proceedings  Settlements with prosecutors, with courts setting conditions  Industries Ceresita case © 2013 Miller & Chevalier Chartered
  6. 6. 6 6 Matteson Ellis Miller & Chevalier Chartered (202) 626-1477 © 2013 Miller & Chevalier Chartered
  7. 7. Argentina Update on Local Anti-Corruption Regulation 7  Bill of Amendment of the Criminal Code  Introduces criminal liability for Companies in matters of anti-corruption  Requirement for Company Criminal Liability: - Advantage for the Company - Manifest lack of internal controls and supervision  Sanctions: - From fines to cancellation of the company’s charter
  8. 8. Argentina Update on Local Anti-Corruption Regulation 8  City of Buenos Aires: Ethics Law No. 4,895  Allows public officials to receive: - Protocol gifts received from governments or international organizations - Gifts destined for professional and academic training provided by governments, international organizations or educational institutions - Courtesy gifts granted on occasion of events on which it is usual to grant them.
  9. 9. Marval, O’Farell & Mairal Buenos Aires - Argentina Tel: (54-11) 4310-0100
  10. 10. 20142014 4th Latin American Summit on Anticorruption Ana María Rodríguez Maldonado What is happening in the Region?: Colombia 10
  11. 11. 11 Colombia: Results as of 2013 Colombia is still ranked 94 out of 176 in the Corruption Perception Index – Colombia obtained 36 out of 100 points- (obtained 34 in 2012) (Transparency International) Colombia is still considered to have relevant risk in relation to corruption matters. Transparency International Colombia’s ranking on the ease of doing business rose from 79 among the 175 economies included in 2006 to 43 among the 189 included in 2014. (Doing Business)
  12. 12. 12 Overview on the Region: The region over the years • There are no significant changes, except for the improvement of Brazil and Bolivia and the outstanding scores of Uruguay and Chile.
  13. 13. Being a part of the OECD New legislation to come Further advances to implement policies 13 Colombia: What’s new in Anticorruption regulation? Colombia is currently under the process of being accepted as member of the OECD. The OECD issued 300 recommendations. Some have been made in corruption related policies (whistleblower, lobby). • Pro-ethics registry. • Legal entities liability. • Harsh sanctions and fines. • Whistleblower protection. • Regulation of lobby. • LA/FT policies for the real sector. • Transparency Bill. • Civil and government institutions incorporated since the Anticorruption Statute.
  14. 14. Guilds against corruption Impacts of the International Legislation Need to discuss better practices 14 Colombia: What’s new in Anticorruption regulation? Colombian Guilds such as the Infrastructure Chamber (CCI), the Association of Chambers of Commerce and the National Business Association of Colombia (ANDI) have publicly expressed their interest to implement internal related policies. • Globalization, FCPA and UK Bribery act has changed the way business are made in Colombia. • New interest of corporations to implement good practices. • NPA, DPA and Declination Letters. • Sector protection for those who whistle blow. • Implement new mechanisms to report anonymously. • High level reporting (Transparency Agency).
  15. 15. Contact Us 15
  16. 16. Anti-bribery Law, Trends & Enforcement Luis F. Ortiz Partner 16
  17. 17. I.- Criminal Code: Bribery: (active /passive bribery). Extortion Money Laundering II.- Federal Anti-corruption Law for Public Procurement (2012) Only Federal Not in States or Municipalities Administrative (not criminal) III.- AML Law Administrative (2012) 15 vulnerable activities (i.e. lending, lease, auto…) IV.-National Anti-corruption Agency (@ senate) V.- National Anti-Corruption Prosecutor's Office 17 1. LAW
  18. 18. 2.1 To describe concepts (i.e. “third parties”) such as criminal types of conducts in the administrative law. 2.2. To use AML for future tax assessment purposes. 2.3 To make mandatory: a) AML and Anti-corruption laws data protection friendly b) Use of codes and corporate policy making c) training d) 1 person responsible (not compliance officer) 18 2. TRENDS
  19. 19. 3.1 Anti-corruption: a) People: + Minor quantity actions + Great Activity with public officers b) Corporation: + banned from public (but protected by constitutional proceeding) + Fined but no jail time + FCPA cooperation…?? 3.2 Anti-corruption & AML investigations 19 3. Enforcement & sanctions