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Local Perspectives: Anti-Corruption Efforts in Venezuela, Argentina and Chile

MaduroKirchner [1]Previously I summarized comments from local counsel in five Latin American countries regarding the impact of the FCPA and the UK Bribery Act in their countries (here [2] and here [3]). Today’s post provides local takes on the impact of domestic anti-corruption efforts in three countries in the region: Venezuela, Argentina, and Chile.

Venezuela

According to Gerardo Briceño [4] of Hoet Peláez Castillo & Duque, Venezuela’s President Nicolás Maduro promised a “shattering offensive against corruption” when he was granted one year of extraordinary powers in 2013. Although some reforms are expected – potentially impacting the investigation of corruption cases – “the inconsistencies and excessive powers of some public bodies, and a lack of confidence in the judiciary system still remain.”

Mr. Briceño does note some recent advances in Venezuela’s anti-corruption space:

He also highlights the efforts of civil society and NGOs with regard to corruption, and makes special reference to reports such as the TI Corruption Perception Index, which last year ranked Venezuela as the most corrupt country in Latin America.

Argentina

According to Maximiliano D’Auro [5] and Lucía Degano [6] of Estudio Beccar Varela, “there have been no recent laws in Argentina regarding anti-corruption”, and enforcement of Argentine anti-corruption laws is “deemed to be deficient” despite the existence of several public and private agencies that seek to prevent corruption.

Mr. D’Auro and Ms. Degano note that corruption is regulated under the Argentine Criminal Code (which sanctions different acts of corruption, such as bribery, traffic of influences, etc) and the Law regarding Ethics in the Practice of Official Duty, which is aimed at public officials. They highlight, however, that no Argentine law imposes obligations on companies regarding specific anti-corruption policies or procedures (in contrast to laws governing anti-money laundering, which impose obligations on entities and natural persons deemed ‘gatekeepers’).

Argentina has ratified the principal anti-corruption conventions, including the United Nations Convention against Corruption, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions; and the Inter-American Convention against Corruption.

Chile

At the other end of the spectrum is Chile. Marcos Rios [7] of Carey y Cia. describes Chilean anti-corruption laws as “generally adequate and effective,” and notes that “[c]orruption in Chile is —and has historically been— relatively low. According to Transparency International’s latest Corruption Perception Index, Chile’s corruption levels are equivalent to the U.S.’s and, together with Uruguay, the lowest in the region.”

Mr. Rios helpfully summarizes key elements of Chile’s criminal prohibition against corruption [Ed. Note: FCPAméricas discusses these prohibitions here [8]]:

In general, Chilean anti-bribery laws criminalize any offering, promising or granting to, and any request, acceptance or receiving by, any public official, of any economic benefit, whether for such public official’s or a third party’s benefit, in consideration for performing or refraining from an action within the purview of his/her office.

According to Mr. Rios, essentially the same standard applies to the offering or granting of bribes to foreign public officials, pursuant to legislation passed in 2009, though that requirement has yet to be enforced.

That same 2009 legislation established that legal entities can be held criminally liable for acts of bribery. Mr. Rios notes that it included a safe-harbor provision for companies with a certified compliance program in place, which he said “has been an effective incentive for local companies to design and implement effective anti-corruption programs.”

Conclusion

These comments make clear that national anti-corruption laws and institutions vary across the region, as do enforcement practices. Chile’s laws, institutions and enforcement are well considered, while Argentina and Venezuela are reported to struggle with institutional deficiencies in the judiciary and ineffective implementation of existing laws.

The variation in obligations imposed on companies is particularly interesting. Argentine counsel notes that Argentine law does not require that companies have anti-corruption programs, though there is precedent for such requirements under anti-money laundering laws. In contrast, Chilean law provides for criminal liability for corporations that commit certain corrupt acts, and also encourages compliance programs by providing a safe-harbor provision.

The opinions expressed in this post are those of the author in his or her individual capacity, and do not necessarily represent the views of anyone else, including the entities with which the author is affiliated, the author`s employers, other contributors, FCPAméricas, or its advertisers. The information in the FCPAméricas blog is intended for public discussion and educational purposes only. It is not intended to provide legal advice to its readers and does not create an attorney-client relationship. It does not seek to describe or convey the quality of legal services. FCPAméricas encourages readers to seek qualified legal counsel regarding anti-corruption laws or any other legal issue. FCPAméricas gives permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author and to FCPAméricas LLC.

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