Corruption and Business Ethics

Compliance is here to stay. And Latin America is aware of this. The regulation of corruption and liability of legal persons, whether criminal or administrative, is increasing.

The demand, in companies and public bodies, to prevent corruption and bribery, both in the public sphere (crimes against the Public Administration in general) and in the private sector (corruption among individuals), is increasing. In the latter case, many countries have gradually incorporated this crime into their legal systems.

Chile was one of the first countries in South America to incorporate the issue. Ten years ago, Law 20,393 established the criminal responsibility of legal persons for the following crimes: money laundering, terrorism financing and bribery of national or foreign public officials. In 2016, Law 20,931 increases the list, including the crime of reception (when, knowing its origin, it has in its possession a stolen, stolen, abused or misappropriated species for transport, marketing, sale and transformation). But in November 2018, Law 21,121 was published, which modifies the Chilean Criminal Code and incorporates the crimes of corruption between individuals and unfair administration.

The Peruvian case is even more striking, whose regulations have been reformed three times. In 2016, Law 30424, which regulates the administrative responsibility of legal persons for the crime of transnational active bribery, is approved, although the determination of such responsibility will not be carried out in administrative headquarters, but in criminal headquarters. The following year, Legislative Decree 1352 is approved, which incorporates the crime of corruption, financing of terrorism, illegal mining and organized crime. And recently, the Government approved the Regulation of Law 30424, which establishes the minimum requirements that compliance models must comply with that organizations can implement to prevent crimes of bribery or money laundering.

In March 2017, Law 27,401 entered into force in Argentina, which contemplates the criminal responsibility of legal persons for the following crimes: bribery and influence, national and transnational traffic; aggravated balances and false reports; negotiations incompatible with the exercise of public functions; Concussion and illicit enrichment of officials and employees. The particularity of Argentine regulations is the obligation that companies have to have an Integrity Program (or Compliance) to contract with the National State, in tax cases listed in the law, and when the amount of the contract Public must be approved by the competent authority with a rank not less than minister. The following year, the Anti-Corruption Office published the Integrity Guidelines for the best compliance with the provisions of articles 22 and 23 of Law 27,401 of Criminal Liability of Legal Persons, which constitutes a guide for implementing and evaluating integrity programs. The Argentine Criminal Code is currently being reformed, with the intention of expanding the list of crimes that reach companies, including public ones.

In Mexico, the National Code of Criminal Procedures (CNPP) regulates the criminal liability of legal persons in those crimes committed in their name, on their own behalf, for their benefit or through the means they provide, when determined that there was also non-observance of due control in your organization.

In this context, there are also international standards for Compliance, such as ISO 37001, which incorporates the requirements of two standards that are international reference for companies operating in several jurisdictions: FCPA (United States) and UK Bribery Act (United Kingdom). The ISO sets guidelines regarding gifts and gifts, donations and sponsorships, facilitation payments and control mechanisms to guarantee business with third parties or business partners.

The above demonstrates that good governance and corporate social responsibility policies and strategies have become a necessity and a great competitive advantage not only for large companies and SMEs, but also for the Public Administration, who begins to implement compliance training and anti-corruption policies.

The risks to which companies are exposed could lead to them being involved in scandals that harm not only their reputation, but also the loss of customers and suppliers, so that in this context it becomes a key instrument the creation and continuous implementation of an ethical culture.

It is known that impunity is an old scourge in South America, where judicial powers show resistance to condemnation against political and economic power. The fear of reprisals or the lack of indispensable tools lead to, for example, the United States justice intervening, using a wide range of attraction, setting important fines even if the events take place in Latin America.

The evolution of the regulations demonstrates the importance of Compliance Programs in the private sector and, gradually, in the public sector. Thus, companies are aware that, in addition to obtaining benefits, transparency and ethics have become another asset in companies.

There is a need for radical change. And in this process, the role played by the Public Administration and the implementation of a culture of zero tolerance to corruption, the first step in the progress of the South American countries, is fundamental.

Author: Jimena Alguacil.