Anti-Corruption Enforcement and Regulation: Latin American Landscape in 2017
For the past years, anti-corruption compliance and enforcement have always been a priority for most countries in Latin America. In the 2015 Corruption Perceptions Index (CPI) of Transparency International, Latin America was described as the region with a "serious corruption problem." This controversy has sparked a major concern for businesses, particularly to other foreign countries that are about to conduct business in the region. Nevertheless, with the continued scrutiny by foreign regulatory bodies especially from the United States that has further developed the Latin America’s anti-corruption enforcement, risks and threats are minimized and controlled.
In this LIVE Webcast, a panel of thought leaders and professionals assembled by The Knowledge Group will help the audience understand the important issues surrounding the anti-corruption landscape in Latin America. Speakers will also give highlight to the recent enforcement trends and developments.
Key topics include:
- Identifying and Mitigating Anti-Corruption Risks
- Corruption in Latin America - Recent Statistics
- Mexico's New Anti-Corruption Framework
- Implications to the Year Ahead
- Recent Trends and Developments
Charles E. Meacham, Partner
Gardere Wynne Sewell LLP
- Over the last 15 years, trend by many Latin American countries to sign on to international anti-corruption conventions promulgated by the OAS, OECD and UN, as well as adoption of specific anti-corruption statutes (e.g., Mexico (2012), Brazil (2014) and Colombia (2016)).
- Sociedad Química y Minera de Chile S.A., a Chilean mining and chemical company, paid $30,500,000 in January of 2017 to resolve criminal and civil charges
- Criminal penalty of $15,500,000 paid to the DOJ
- Civil penalty of $15,000,000 to the SEC
- SQM trades on the NYSE
- SQM paid $15,000,000 to vendors connected to Chilean officials despite having no evidence that any goods or services were received by company
- Chilean criminal code levies fines and incarceration to individuals that pay bribes to public officials (Articles 248-250 of the Chilean Criminal Code)
- Article 251 bis of the Chilean Criminal Code provides for fines and incarceration for individuals that offer or provide to a foreign (i.e., not Chilean) governmental official an economic benefit in order to unlawfully influence the actions of the governmental official
- Law 1778 adopted on February 2, 2016 to target unlawful offers or payments made to foreign (i.e., not Colombian) governmental officials
- Violations include fines of up to 200,000 times the monthly minimum wage
- Violators barred from contracting with the Colombian government for up to 20 years
- International bribery codified in Article 433 of the Colombian Penal Code
- 2012 – Adoption of the Mexican Federal Anti-Corruption Law for Public Contracts
- Domestic focus on illicit actions undertaken by Mexican and Non-Mexican individuals and companies in connection with Mexican federal public works contracts
- Extra-territorial focus on illicit actions undertaken by Mexican individuals and companies in connection with public works contracts undertaken outside of Mexico
- Anti-bribery provisions similar to FCPA anti-bribery provisions
- Liability extends to complicit governmental officials
- Anti-bribery provisions purportedly also apply to any “…shareholder, partner, advisor, subcontractor or employee…” that intervenes in public contracts of a federal nature.
- Adopts zero tolerance approach similar to the UK Anti-Bribery Act (no facilitation payments allowed)
- 2016 – General Law for National Anti-Corruption System Adopted on July 18, 2016
- Derives from amended Article 13 of the Mexican Constitution
- Creates nationwide anti-corruption system to be implemented at the federal, state and municipal levels
- 2016 – General Law of Administrative Responsibility, published on July 18, 2016 and becomes effective on July 18, 2017
- Applies to current and past governmental officials and individuals that commit grave administrative offenses
- Requires governmental officials to disclose assets and tax returns
- Mexican companies should adopt an integrity plan that includes seven elements, similar to a compliance program set forth in the 2012 DOJ/SEC Resource Guide:
- A compliance manual
- A published code of ethics
- Internal controls, compliance and audit functions
- Procedures for internal and external whistleblowers
- Adequate compliance training
- Human resources policies that prevent the hiring of persons that can damage the integrity of the company
- Adoption of measures to assure transparency
- Query: How do the preceding compare to the DOJ’s Evaluation of Corporate Compliance Programs guidelines issued in 2016/2017?
- Penalties include fines, temporary disqualification and indemnity for damages
- 2012 – Adoption of the Mexican Federal Anti-Corruption Law for Public Contracts
Carlos A. Chavez, Senior Attorney
J.A. Treviño Abogados (JATA)
- The new Mexican General Law of Administrative Responsibility, effective July 18, 2017, superseding Mexican Federal Anti-Corruption Law for Public Contracts
- Similarities with other frameworks
- Implementation at the local (state) level
- Implications of the new framework for companies doing business in Mexico, including these main topics:
- Dealing with authorities in Mexico
- Penalties and sanctions
- How to minimize risks associated with corrupt practices in Mexico, including these main topics:
- Action plan for companies dealing in Mexico
- How to handle these conducts
Joshua Roth, Attorney
Fried, Frank, Harris, Shriver & Jacobson LLP
- Focus on Brazil: Regulatory and Enforcement Actions
- Brazil Clean Company Act
- Odebrecht-Braskem Settlement
- Operation Car Wash Investigation
- Other Recent Enforcement Actions
- Orthofix International
- Ralph Lauren Corp.
- Direct Access Partners
Stuart H. Deming, Principal
- Debarment implications associated with developments in Brazil.
- Role of leniency agreements in Brazil
- Relationship to DPAs in US and UK
- Key consideration warranting compliance as well as implications for inadequate compliance programs.
- Debarment in foreign settings.
- Role of Internal Controls under the FCPA and the applicable guidance of the UK’s Financial Conduct Authority.
- Internal controls much broader and more dynamic than an anti-bribery compliance program. A compliance program is an element of internal controls.
- Far greater jurisdictional reach than the anti-bribery provisions of the FCPA. Unlike the anti-bribery provisions, the accounting and record-keeping provisions apply to foreign subsidiaries of issuers.
(Cite to numerous cases premised on violations of the accounting and record-keeping provisions as opposed to anti-bribery violations.)
- Not limited to violations of US or UK law. Must take into account violations of the laws of other countries, including commercial bribery
- Must also ensure that record-keeping practices require accurate and reasonably detailed records.
- A couple of cases will be cited as examples.
- What is required for an effective compliance program is remarkably similar to what is required in the US, the UK, and the CCA, among other legal regimes.
- Overlapping factors will be cited.
- Gaps will be addressed.
- These common characteristics have advantages in designing and implementing a compliance program.
Joshua Roth, Attorney
Fried, Frank, Harris, Shriver & Jacobson LLP
- Challenges Associated with Conducting Effective Due Diligence in Latin America
- Principles of Secondary Liability Under the FCPA
- Higher-Risk Transactions/Relationships
- Mergers and Acquisitions
- Joint Venture Partners
- Third-Party Representatives
- Entities Potentially Tainted by Allegations of Corruption
- Best Practices for Conducting Anti-Corruption Due Diligence in Latin America
- Joint Venture Relationships in Latin America
- Treatment of Joint Ventures under the FCPA
- Benefits of Partnering with a Local Business.
- Management of the Joint Venture.
- Other Considerations
- Anti-Corruption Compliance Provisions
- Dispute Resolution Mechanisms
- Termination Rights
Who Should Attend:
- Chief Compliance Officers
- Executive Officers
- Compliance and Litigations Counsel
- Ethics Officers
- International Contract Managers
- Anti-Bribery and Anti-Corruption Officers
- White Collar Crime Lawyers
- Forensic Auditors
- Other related/interested Professionals and Organizations
Charlie Meacham, a bilingual and bicultural corporate lawyer born and raised in Caracas, advises clients with cross-border projects throughout the Americas. Charlie opened the Gardere office in Mexico City in 1992, and was the resident U.S. partner in charge until 1996. He advises clients doing or seeking to do business in Mexico and Latin America on how to structure investments and projects, including cross border joint ventures, public bids for infrastructure projects, acquisitions and divestitures and international contracting matters.
Charlie also represents Latin American and other foreign investors in the U.S., and advises clients worldwide on compliance with the Foreign Corrupt Practices Act (FCPA) and other anti-corruption conventions. Clients rely on Charlie’s ability to quickly gain entrée and to navigate the business communities, governments and regulations of nations with emerging economies.
Charlie received his B.A. from The University of Texas at Austin and his J.D. from The University of Texas School of Law.
Charlie Meacham, a bilingual and bicultural corporate lawyer born and raised in Caracas, advises clients with cross-border projects throughout the …
Over many years, Stuart H. Deming has represented foreign and domestic clients in a range of business and investigatory matters focusing on the FCPA and related antibribery regimes now being enforced in much of the world. Both an attorney and CPA, prior to entering private practice, he served with the SEC and in various capacities with the U.S. Department of Justice, including as one of the special prosecutors in a highly sensitive investigation of the U.S. Congress. Mr. Deming is the author of Oxford University Press’ recently published Anti-Bribery Laws in Common Law Jurisdictions; the co-author with a leading English barrister of The FCPA and UK Bribery Act: A Ready Reference for Business; and the author of a major best-selling book published by the ABA: The Foreign Corrupt Practices Act and the New International Norms.
Over many years, Stuart H. Deming has represented foreign and domestic clients in a range of business and investigatory matters …
Joshua D. Roth is a litigation partner resident in Fried Frank’s New York office. He represents entities and individuals in a diverse range of complex white collar, regulatory, and commercial litigation matters.
Mr. Roth counsels clients on the Foreign Corrupt Practices Act and related anti-corruption laws, representing entities and individuals in connection with investigations, anti-corruption due diligence for acquisitions, underwritings, and financings, and designing and implementing anti-corruption compliance programs for businesses in various industries. Among other representations, Mr. Roth is currently advising clients operating in Latin America on various anti-corruption matters, including in connection with the ongoing investigations in Brazil. Mr. Roth also represents entities and individuals in investigations and enforcement actions by various federal and state government authorities and litigates corporate matters and business disputes in state and federal courts.
Mr. Roth received his JD, magna cum laude, from Boston University School of Law and his BA, magna cum laude, from Cornell University.
Joshua D. Roth is a litigation partner resident in Fried Frank’s New York office. He represents entities and individuals in …
Carlos A. Chávez Pereda is a Senior Associate at JATA, based in its Monterrey, Mexico office. Carlos has advised Mexican and international clients on a broad range of matters relating to commercial, financial and energy transactions, mergers and acquisitions, intellectual property, data privacy protection and business start-up in Mexico. He is also experienced in the design and implementation of corporate structures in Mexico, including corporate governance matters. Carlos obtained his law degree from the Universidad de Monterrey, and a LL.M. from Duke University. He is a member of the Mexican Bar Association.
Carlos A. Chávez Pereda is a Senior Associate at JATA, based in its Monterrey, Mexico office. Carlos has advised Mexican …
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Method of Presentation:
Experience in corporate law or internal investigations
NASBA Field of Study:
Business Law - Technical
NY Category of CLE Credit:
Areas of Professional Practice
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About Gardere Wynne Sewell LLP
Gardere Wynne Sewell LLP, an Am Law 200 firm founded in 1909 and one of the Southwest's largest full-service law firms, has offices in Austin, Dallas, Denver, Houston and Mexico City. Gardere provides legal services to private and public companies and individuals in the areas of aviation, chemical and refining, corporate, energy, environmental, financial restructuring and reorganization, government affairs, hospitality, insurance, intellectual property, international, labor and employment, litigation, manufacturing, maritime, private equity, real estate, retail, tax, technology law and venture capital.
About Deming PLLC
DEMING PLLC represents companies, organizations, and individuals in a range of international legal matters, including complying with various foreign and domestic legal regimes associated with the conduct of international business and, in particular, the Foreign Corrupt Practices Act (FCPA), the UK Bribery Act, and Canada’s Corruption of Foreign Public Officials Act (CFPOA). DEMING PLLC has built a reputation for excellence in handling matters related to the FCPA, implementing and auditing corporate compliance programs, ensuring the adequacy of internal controls, conducting internal investigations and due diligence, providing advice relative to making disclosures togovernment officials, and representing clients in U.S. Department of Justice, U.S. Securities and Exchange Commission, and other investigations. DEMING PLLC regularly provides its specialized expertise to support major foreign and domestic law firms, accounting and consulting firms, and counsel for companies, organizations, and audit committees.
About Fried, Frank, Harris, Shriver & Jacobson LLP
Fried, Frank, Harris, Shriver & Jacobson LLP advises the world's leading corporations, investment funds and financial institutions on their most critical legal needs and business opportunities. The Firm's approximately 500 lawyers are based in North America and Europe. More information can be found at www.friedfrank.com.
About J.A. Treviño Abogados (JATA)
J.A. Treviño Abogados –JATA– is a law firm specialized in international business transactions, with offices in Monterrey, Mexico and Houston, Texas. The firm is internationally recognized in several practice areas, among which are Contracts and Corporate Advisory, Mergers & Acquisitions, Financing, Energy, Business Start-Ups and International Trade, Real Estate Transactions, Labor Matters and Intellectual Property. JATA’s clients range from mid-size Mexican, North American, European and Asian private companies, to large corporations listed in Fortune 500. Some of the most prestigious global law firms rely on JATA for their clients’ transactions in Mexico.
Integrated by a qualified bilingual and bi-cultural professional team, JATA is specially positioned to advise foreign companies who are seeking for business opportunities in Mexico. JATA’s clients prefer its high quality service, in addition to the integrity, ethics and outstanding experience of the firm in its areas of practice.