by Juan Manuel González | Nov 25, 2024 | Noticias-en
The Specialized Unit for Economic Crimes, Environmental Crimes, Cybercrime and Money Laundering (ULDDECO) of the National Prosecutor’s Office organized a work day aimed at the study and analysis of economic crimes, which took place between October 8 and 10 in the city of Santiago.
As a result of this workshop, the “Quick Guide to Law No. 21,595 on Economic Crimes” was published, aimed at prosecutors and officials of the Public Ministry as a comprehensible and concise tool to facilitate their approach to the law.
It is worth noting that this guide has not only been useful for prosecutors in our country, but also for all those who make compliance their career, clarifying, without a doubt, some questions that arose from the law.
The guide outlines the most relevant aspects and changes brought about by the Economic Crimes Act, reviewing the four categories of crimes and the requirements that must be met in each of the categories for the application of the EDL in the commission of the crimes provided for in each of them.
In particular, this guide highlights its statement on third-category crimes, which refer to criminal types with a qualified active subject; that is, those that require that the person committing the crime be a public official or agent. The guide clarifies that, in these cases, the intervention as a co-author or accomplice could lead to the application of the principle of communicability to third parties who do not hold public office.
This issue remains controversial, as there are conflicting doctrinal theories on whether or not these crimes can be communicable, as well as jurisprudence that rules in both directions.
It is worth mentioning that, in Chile, although not in the area of economic crimes, the Supreme Court has applied the principle of communicability in cases of tax fraud, as observed in Case No. 17014-2015, condemning third parties involved as co-authors of the official crime.
The guide also explains some special rules contemplated in the LDE, the sanctions applicable to persons responsible for economic crimes, as well as
the mitigating and aggravating circumstances inherent in the law, the admissibility of alternative sentences, the determination of the fine and the imposition of disqualification sanctions in the context of the law.
The guide is, without a doubt, a must-read for all those involved in compliance, as it provides visual material that simplifies and systematises the law, making it accessible to everyone.
For more information on what actions your company or corporation should take to prevent crimes from being committed within it, we recommend that you consult our Compliance Group:
Rodrigo Albagli | Partner | ralbagli@az.cl
Yoab Bitran | Compliance Group Director | ybitran@az.cl
Caterina Ravera | Senior Associate | cravera@az.cl
Florencia Fuentealba | Associate | ffuentealba@az.cl
Loreto Osorio | Associate | losorio@az.cl
Sebastian Achondo | Associate | sachondo@az.cl
Macarena Navea | Associate | mnavea@az.cl
Felipe Barrera | Associate | fbarrera@az.cl
by Juan Manuel González | Oct 14, 2024 | Noticias-en, Opinions
In the context of a large multinational corporation, implementing a compliance ambassador program is essential to ensure integrity, ethics and compliance across all of its global operations. This article explores the importance of this program, highlighting the need for capillarity and the main tasks that ambassadors perform.
Involving employees in a voluntary participation process, with the approval of leaders, brings them closer and makes them feel part of the Compliance area.
In addition, ambassadors know the best way to communicate with their areas and contribute significant improvements to the Compliance processes, whether by resolving more specific queries and referrals from their colleagues, or by proposing personalized training or even changes to Guidelines and Procedures.
Compliance Ambassadors play a crucial role in promoting an environment of ethics and integrity. Their main tasks include:
1. Education and Training: Propose training sessions on compliance policies, code of conduct and best practices, ensuring that all employees understand their responsibilities.
2. Support for inquiries and requests: Serve as points of contact for compliance issues, promoting open dialogue and disseminating relevant information on ethical practices.
3. Disclosure and Engagement: Monitor and disseminate compliance activities in their areas, involving their colleagues and providing feedback and opportunities for improvement to the Compliance area.
Importance of capillarity
In large corporations, cultural diversity and the variety of local regulations require an approach adapted to regional realities. Therefore, capillarity in a compliance program is extremely important to map the needs and different forms of communication with all areas and levels of the organization, from headquarters to operational areas.
The presence of Compliance Ambassadors in various areas and levels of the company helps to:
1. Reinforce everyone’s responsibility: With ambassadors in different regions, we reinforce daily that the responsibility of maintaining an ethical and safe environment must be shared among all employees.
2. Bring Compliance closer to the business: A compliance ambassador program acts as a link between the Compliance area and the Company’s employees, promoting a culture of ethics and compliance.
3. Employee commitment: The presence of ambassadors in different areas creates an environment where employees feel more comfortable discussing concerns and reporting irregularities.
Conclusion
A compliance ambassador program is vital to the success of large multinational corporations. Through the proactive actions and reach of ambassadors, it is possible to create an organizational culture that values ethics and compliance. This not only minimizes legal and reputational risks, but also strengthens trust between employees, customers and stakeholders, positioning the company as a leader in corporate responsibility at a global level.
By Victor Alota I. Pereira, Compliance Specialist at Braskem.
by Juan Manuel González | Oct 3, 2024 | Noticias-en, Opinions
On September 26, the regulations governing the supervision of legal entities , in accordance with the provisions of the Law on Economic Crimes , were published in the Official Journal .
Among the most relevant modifications, the figure of supervision of the legal entity was incorporated , which can be ordered by a court as a penalty, precautionary measure or condition of a conditional suspension of the procedure.
In addition, it seeks to ensure that companies that are part of the proceedings establish an effective system for preventing economic crimes.
Among the most relevant aspects for the application of this regulation, there are several elements that are key to the effective functioning of the supervision system for legal entities.
Below we mention the following:
- Definition of supervision of legal person: According to the regulation, supervision of the legal person consists of “ subject to a supervisor, appointed by the court, responsible for ensuring that the legal person effectively develops, implements or improves a crime prevention system within a minimum period of six months and a maximum of two years . ”
- General requirements for the application of the legal entity: The court will appoint a supervisor in those cases where it is determined that the legal entity does not have a crime prevention system , or said system is insufficient to prevent crimes.
- Obligations: The legal entity shall be obliged to make available to the supervisor all the information necessary for the performance of the assignment, including allowing access to its facilities and premises.
In addition, he/she shall be obliged to comply with the instructions given by the supervisor in the development, implementation, improvement or control of the operation of the crime prevention system.
Regarding the role of the supervisor , several key aspects stand out that are fundamental to understanding his role and responsibility within the supervision system of legal entities, among which the following stand out:
- Qualifying requirements to hold the position: The supervisor must be a natural person who meets certain requirements such as:
- Have a relevant professional qualification (professional degree of at least ten semesters in duration).
- At least five years of verifiable experience.
- Knowledge of risk management and crime prevention, and experience in the applicable legal framework.
- In addition, the director must ensure that there are no conflicts of interest or prohibitions or disqualifications that affect the exercise of his or her duties.
- Powers and duties of the supervisor:
- It may issue instructions and set conditions on the legal entity’s crime prevention system, as determined by the court.
- You have the right to access information, facilities and interview personnel necessary to perform your duties.
- Its actions are limited to the prevention of crimes, and it must maintain confidentiality regarding the information obtained, except in public reports.
- In addition, he is considered a public employee for the purposes of his responsibilities.
- Supervisor’s remuneration: The supervisor’s remuneration will be determined by the court according to market criteria and will be the responsibility of the company.
This remuneration will cover all expenses and fees related to supervision, including those of his team.
Candidates will propose their compensation at the appointment hearing, taking into account factors such as the size and complexity of the legal entity, as well as the compensation of similar supervisors and other relevant positions.
For more information on the application of this regulation, we recommend consulting our Compliance group :
Rodrigo Albagli | Partner | ralbagli@az.cl
Yoab Bitran | Compliance group director | ybitran@az.cl
Caterina Ravera | Senior Associate | cravera@az.cl
Sebastian Achondo | Associate | sachondo@az.cl
Loreto Osorio | Associate | losorio@az.cl
by Juan Manuel González | Sep 27, 2024 | Noticias-en, Opinions
SBS Resolution No. 02648-2024, a crucial regulation for the prevention of money laundering and terrorist financing (LAFT) applicable to Virtual Asset Service Providers (PSAV), was published.
Importance
This resolution is especially relevant for those operating in the virtual assets (cryptocurrencies) market, ensuring that their activities are carried out within a regulatory framework that minimizes risks and promotes transparency.
Scope and Reach
As of July 2023, PSAVs were incorporated as subjects required to report to the UIF-Peru through DS No. 006-2023-JUS.
Now, with this resolution, specific rules are established that will regulate the LAFT Prevention System for all PSAVs domiciled or incorporated in Peru.
What are PSAVs and what activities do they perform?
Virtual Asset Service Providers (VASPs) are entities that facilitate transactions and services related to virtual assets, such as cryptocurrencies (Bitcoin, Ethereum, and others). According to Article 2 of the resolution, VASPs can carry out activities such as:
- Exchange between virtual assets and fiat or legal tender currency.
- Exchange between one or more forms of virtual assets.
- Transfer of virtual assets.
- Custody and/or administration of virtual assets or instruments that allow control over them.
- Participation and provision of financial services related to an issuer’s offering and/or sale of a virtual asset
Obligations of the PSAV
- The PSAV must implement a system for the prevention of money laundering and tax evasion (SPLAFT) by managing the risks to which it is exposed. This includes appropriate policies and procedures for knowing its customers, identifying unusual transactions and ensuring employee training.
- PSAVs must register with the Financial Intelligence Unit (UIF-Peru) as SO and keep their status as obligated subjects up to date.
- In the event of ceasing their activities or modifying their regulations, PSAVs must notify the UIF-Peru within 30 days.
- PSAVs must comply with specific due diligence requirements to know their customers and report suspicious transactions.
Validity:
- The regulation came into force on August 2, 2024.
- Chapter VIII, called “Travel Rules”, which includes specific provisions on the transfer of information in virtual asset transactions, comes into force in two years, in August 2026 .
Adaptation period:
PSAVs have a period of 120 days to adapt to the new provisions. This period is essential to implement the systems and procedures necessary to comply with the standard.
For more details or how to adapt the standard, you can contact us: compliance@cpb-abogados.com.pe
by Juan Manuel González | Sep 23, 2024 | Noticias-en
Decree No. 749/2024 , which regulates the Large Investment Incentive Regime (RIGI), includes a series of relevant aspects linked to the regulation of competition defense.
– Its article 47, paragraph h) establishes, in line with the provisions of article 176, paragraph h) of Law No. 27,742, that the application for adhesion to the RIGI must include a sworn declaration that the RIGI Project will not distort the local market.
Such statement must be supported by a technical study carried out by a lawyer or economist with technical knowledge in competition defense and must include, as a minimum (i) the description of the product or service to be offered; (ii) the definition and projection of the probable evolution of the relevant market(s); (iii) the identification of the participants in the market(s) under analysis that could be affected by the project and (iv) an analysis of the positive and negative aspects that the projected investment could have in the relevant market.
– Article 52 establishes that failure to include the elements referred to in the preceding paragraph will lead to the rejection in limine of the application for accession.
– Once the technical study has been submitted, the Enforcement Authority may request the National Commission for the Defense of Competition to issue a non-binding opinion.
For more information contact:
Gustavo Papeschi | Partner at Beccar Varela | gpapeschi@beccarvarela.com