by Juan Manuel González | Jul 11, 2023 | Noticias-en
The Investigative Authority of the Federal Economic Competition Commission (“COFECE”) published on July 3, 2023 the notice of initiation of an investigation for a complaint for the possible performance of related monopolistic practices with file number DE-023-2023, in the market for the development, marketing and sale of digital goods and/or services, as well as related services in the national territory.
In this regard, COFECE noted that this investigation focuses on products such as electronic books, software, video games, photographs, music, and online movies, among others. These digital goods and services are created by developers and marketed to end users through various channels. In addition, COFECE indicated that it will analyze the negotiation and payment processing mechanisms associated with these transactions. In this regard, he pointed out that, in 2021, video game sales in the country increased by 24% compared to the previous year, while digital book sales grew by 35% and digital photo and video sales by 19%.
In this investigation, COFECE may request information in writing, carry out verification visits, as well as summon economic agents that participate in or are related to said market to testify. Pursuant to the Federal Law on Economic Competition (“LFCE”), there is an obligation for economic agents that are requested and visited to cooperate and submit the information requested to COFECE.
The purpose of publishing said investigation is to provide any economic agent with an interest in it, the opportunity to contribute and express what is appropriate to their right in relation to the investigated conduct or circumstances that may be contrary to the LFCE. Therefore, any person or company that considers that it has an affectation in the investigated market will have the opportunity to manifest it before COFECE.
For more information contact:
Juan José López de Silanes | Partner Basham, Ringe and Correa | lopez_de_silanes@basham.com.mx
by Juan Manuel González | Jul 5, 2023 | Noticias-en
At present, respect for human rights in business has become an issue of increasing importance throughout the world and is already part of the central core of business activity that must be aligned with principles of environmental, social and governance standards. (IS G). Regulatory compliance plays a critical role in protecting human rights and promoting ethical business practices. This article focuses on analyzing the relevance of compliance in Latin America and the United States and its relationship with Human Rights.
Regulatory compliance in companies not only refers to compliance with laws and regulations, but also to respect for and promotion of Human Rights. Companies have a responsibility to carry out due diligence to ensure that their operations do not contribute to violations of fundamental rights, both within their own facilities and in their supply chain. This implies adopting measures to prevent and address cases of discrimination, forced labor and child exploitation, among others.
In Latin America, the relationship between compliance and human rights presents particular challenges. The region is characterized by the presence of industrial sectors that present greater risks both related to corruption and Human Rights. These risks exist in the extractive industries, which include mining and oil, and which are often associated with negative impacts on local communities and the environment or agriculture that features a greater presence of informal or child labor. In this context, Compliance plays a crucial role in ensuring that companies comply with environmental and social regulations, and respect the rights of neighboring communities, in response to the multiple considerations that have been adopted internationally by various countries.
There are certain factors that have contributed to the increase in importance of this topic. Several Latin American countries have enacted stricter laws and regulations to promote regulatory compliance with positive impacts on the promotion and respect of Human Rights, for example, in defense of the environment, decent wages and the protection of children. In this same context, civil society and non-governmental organizations have contributed to the surveillance and denunciation of irresponsible business practices, thus focusing on a greater commitment to Human Rights.
“In Chile, the promotion of Human Rights in the business context has been reinforced with regard to the work that different industries have carried out to achieve international compliance. This has not only meant an ethical commitment to the promotion of Human Rights, but also an improvement in the reputation and sustainability of companies”, explains Jaime Viveros, associate of the firm AZ de Chile.
Aligned with these trends, more and more countries have converted into law the United Nations Guiding Principles on Business and Human Rights, due diligence in the field of human rights (DDHR) and hold companies accountable for infringing human rights with their activity. abroad. In this context, one can mention France with its “loi sur le devoir de vigilance” or Germany with its recent law on due diligence in the value chain “LkSG”. The European Union, in turn, has its project for a Directive on due diligence of companies in terms of sustainability, which will unify the standards of all member countries in terms of human rights and the environment and will globally require suppliers of European companies, including those from Latin America and the US, to comply with the new legal requirements.
In the United States, Human Rights compliance has gained prominence in recent years, promoting its application in other jurisdictions. Indeed, the Law for the Protection of Human Rights Abroad and the Supply Chain Transparency Law require companies to report on their measures to prevent human trafficking and forced labor. Another important Law on import restriction is the Uighur Forced Labor Prevention Act (UFLPA), which has been in force since 2022 and prohibits the importation of goods extracted, produced, manufactured in whole or in part in the People’s Republic of China, especially in the Xinjiang Autonomous Region or by any other entity within the UFLPA List.
However, there are challenges in the effective implementation of these laws and in the supervision of business practices, since globalization and the complexity of supply chains make it difficult to identify and eradicate practices that violate Human Rights. In this regard, it is essential to strengthen compliance mechanisms and promote collaboration between the private sector, government, and civil society to address these challenges.
From a business perspective, while Human Rights due diligence has many similarities to traditional due diligence in business compliance programs, there are some important differences to consider. The main differences are: (i) the need to analyze the risks from the perspective of the rights holders (eg, the people affected by the negative impacts) and not only from the perspective of the company’s risks; and (ii) placing greater emphasis on stakeholder engagement and transparency, with the expectation that the company should share information with a broader range of stakeholders (eg, employees, community members), should seek their feedback. and reactions and publicly report the efforts made.
Regulatory compliance and the protection of Human Rights are interdependent aspects that must be addressed jointly in Latin America, the United States and throughout the world. Only through a comprehensive and committed approach can we ensure that companies act ethically, respect and promote with integrity the fundamental guarantees of people in all their business activities.
by Juan Manuel González | Jun 30, 2023 | Noticias-en
On June 8, 2023, the long-awaited Official Mexican Standard NOM-037-STPS-2023 was published in the Official Gazette of the Federation. Teleworking – Safety and health conditions in teleworking, after an analysis of the labor and business sectors to the project that was originally published on July 15, 2022. The creation of this Official Mexican Standard is the result of compliance with the reform that added Chapter XII Bis of the Federal Labor Law, in matters of Teleworking, in the month of January 2021, where it granted the Federal Executive Power a period of eighteen (18) months to publish a regulation that reflected the provisions, obligations and guidelines on health and safety in the provision of services under the teleworking modality.
The Standard contemplates the following points:
General considerations.
It distinguishes between the workplace, where the activities are carried out in person, and the workplace, which is different from the workplace, where the teleworking worker carries out their activities.
Obligations of the employer.
Have an updated list of workers under the teleworking modality, which reflects name, gender, marital status, name and job profile, activities to be carried out, time (in percentage) under the teleworking modality, contact telephone number , address, the place or places agreed for the provision of remote services, reason and address of the workplace and a list of computer and ergonomic equipment granted to the worker.
Ensure that the workplaces in which the services are carried out under the teleworking modality meet specific conditions, such as having connectivity, complying with safety and health conditions at work (good condition of electrical installations, lighting, ventilation and ergonomic conditions), and the employer can carry out a physical or virtual verification of the referred place, through its Safety and Hygiene Commission.
Establish and implement a Teleworking Policy with a gender perspective, which includes rest time for working women who are breastfeeding.
Have the validation of the “Verification list of health and safety conditions in teleworking”, either through a visit or through a questionnaire that is given to the worker that allows determining whether or not they have the conditions necessary for the development of remote work. These visits may be carried out by the Safety and Hygiene Commission, with the consent of the worker.
Establish in writing the procedure to migrate from face-to-face to teleworking.
Provide ergonomic chairs and other supplies and accessories necessary for the performance of their tasks.
Create and document programs regarding how to provide maintenance to electronic equipment delivered to teleworkers.
Provide training to teleworkers on health and safety conditions that they must maintain in their remote workplace, at least once a year.
Guarantee reversibility to the face-to-face scheme, when justified, or because it suits their interests.
Carry out the medical examinations that correspond to workers in accordance with NOM-030-STPS-2009 (Preventive services for safety and health at work-Functions and activities), and follow up on notices of work accidents.
Have care mechanisms for cases of family violence, which include the return to face-to-face modality.
Guarantee the confidentiality of the lists of people who are under the teleworking modality.
Provide support and facilities for teleworking workers to participate in the Safety and Hygiene Commission or in the Mixed Training, Training and Productivity Commission.
Include union rights and provisions of the applicable collective agreement in the Teleworking Policy.
Obligations of workers under the teleworking modality.
Provide the Safety and Hygiene Commission with the necessary facilities to check the health and safety conditions in their workplace, for the first time, and then with the established periodicity.
Comply with the Teleworking Policy.
Inform the employer of any alteration that, in terms of safety and health at work, prevent the development of their activities in the place agreed by the parties. The basic elements of the temporary change of workplace document are: date of preparation, name of the worker, and description of the change of address.
Safeguard and keep in good condition the electronic equipment, materials, tools and ergonomic material delivered by the employer.
Comply with the provisions on occupational health and safety, and submit to medical examinations, in accordance with NOM-030-STPS-2009 (Preventive occupational health and safety services-Functions and activities).
Comply with the policies and mechanisms for the protection of data and information, the restrictions on use and storage, established by the employer.
Inform the employer in writing regarding any change of temporary or permanent address from where they carry out their remote activities.
Participate in the information and training processes on the risks related to Teleworking.
Notify the employer and the Safety and Hygiene Commission of the work risks suffered.
Safety and Health Conditions at Work / Training and Instruction.
The Standard establishes the occupational health and safety conditions that the parties must comply with in order to avoid work risks caused by physical agents, ergonomic risk and psychosocial risk factors, as well as the terms and conditions under which training and training for workers under the teleworking modality.
Verification of Health and Safety Conditions.
Employers may contract evaluation agencies in charge of inspecting health and safety conditions -without them visiting the workplace-, called “Inspection Units”, which must have accreditation and approval for this. For this purpose, a “Conformity Assessment Procedure” is established, which will be applicable both for the aforementioned Inspection Units, as well as for inspection visits carried out by the labor authority in the work centers.
The Standard also establishes the type of verification (documentary and/or interview) and the acceptance criteria with which the employer may accredit, through the Safety and Hygiene Commission, due compliance with its obligations regarding safety and health in teleworking and contains various reference guides that the employer can take as a basis for the observance of the corresponding provisions.
In this latest version of the Standard, a preponderant role was given to the Safety and Hygiene Commission, with the aim of being in charge of verifying the conditions in which workers will perform under the teleworking modality, which can be verified through photos or videos.
Another important aspect of the Standard is that it highlights the gender perspective as an element in the implementation of the teleworking modality, establishing special protections for people who may suffer violence in the home and recognizing the rights of lactating women to take breaks.
Based on the foregoing, through this Standard it is intended to encourage the importance of work-family balance, to avoid social isolation and techno-stress (negative psychosocial effects derived from the use of information technologies), as well as the role of employers to prevent risks that could negatively affect the health and life of their workers.
The Standard will enter into force one hundred and eighty (180) calendar days after its publication in the Official Gazette of the Federation, that is, in December of this year 2023.
For more information contact:
Juan José López de Silanes | Partner Basham, Ringe and Correa | lopez_de_silanes@basham.com.mx
by Juan Manuel González | Jun 27, 2023 | Noticias-en
In the digital age, the protection of personal data has become an issue of increasing importance throughout the world. Uruguay is no exception, since the country has established a solid legal framework to guarantee the privacy and security of personal information, which includes natural persons and also legal or ideally-existing persons. Through laws and regulations, the State has demonstrated its commitment to the protection of individual rights in the digital environment.
The Personal Data Protection Law
Law No. 18,331 on the Protection of Personal Data and Habeas Data Action, promulgated in 2008, and its complementary regulations, is the main legal instrument for the protection of information. This law establishes the principles and obligations for the processing of personal data, both by the public sector and the private sector. In addition, it created the Personal Data Regulatory and Control Unit (URCDP) as the authority in charge of supervising and enforcing the legislation.
Fundamental principles of the law
Uruguayan law is based on several fundamental principles. These include:
- Informed consent: The processing of personal data requires the informed, unequivocal and express consent of the data owner, unless there is a legal exception.
- Specific purpose: Personal data can only be collected and used for a specific and legitimate purpose, previously informed to the owner of the data.
- Security: Appropriate technical and organizational measures must be implemented to protect personal data and prevent its unauthorized access, loss or alteration.
- Proactive responsibility: Those responsible and in charge of treatment must adopt the measures tending to comply with the regulations, among them, privacy by design and by default, and carry out privacy impact assessments.
It also recognizes and protects the rights of the holders of personal data. These rights include access to the information collected, the rectification and updating of inaccurate data, the inclusion of data when there is a well-founded interest, and the deletion of data when it is no longer necessary.
Challenges
Although Uruguay has established a solid legal framework for the protection of personal data, since, for example, the latest modifications to the regulations date from January 2023, there are still challenges in this area. Constant technological progress and increasing digitization pose new challenges in terms of privacy protection. In addition, it is necessary to promote awareness and educate citizens about their rights and the best practices to protect their data in the digital environment.
“In Uruguay, data protection continues to have a huge presence, in national and international businesses. Uruguay has had the adequacy note from the European Commission since 2012, which represents a differential when receiving investments, and has motivated a continuous review of legislation to continue adapting it to the main trends and international standards. In addition to opportunities, the foregoing also represents challenges for companies that need a continuous review of their personal data management practices in an increasingly demanding context due to the internal adoption of analytics, big data and artificial intelligence solutions. ” point out Martín Ferrere and Cecilia Alberti, partner and senior associate of FERRERE Uruguay.
Compliance in the protection of personal data is of vital importance because compliance with regulations contributes to protecting the rights of individuals, strengthening customer trust, and improving competitiveness in the market by mitigating risks.
Companies and organizations that have a culture of compliance not only avoid sanctions and reputational consequences, but can also gain competitive advantages, resulting in better business opportunities.
For more information contact:
Carla Arellano | Counselor Ferrere | carellano@ferrere.com
by Juan Manuel González | Jun 15, 2023 | Noticias-en
Through Executive Decree No. 754 of May 31, 2023, President Guillermo Lasso amended the Regulations to the Organic Code of the Environment (hereinafter, “ RCODA ”).
This reform is preceded by Judgment No. 22-18-IN/21 of September 8, 2021, in which the Constitutional Court: (i) Clarified that environmental consultation and prior consultation with indigenous communities are different consultations, and that Art. 184 of the CODA does not apply or replace the right to prior consultation of indigenous communities; (ii) Ordered that Art. 184 of the CODA must be interpreted according to the Constitution of the Republic, the jurisprudence of the Constitutional Court, and the Escazú Agreement; [1] (iii) Declared the unconstitutionality of Arts. 462 and 463 of the RCODA; and (iv) Ordered the President to adapt the RCODA to the resolution. Subsequently, the aforementioned Court issued Judgment No. 1149-19-JP/21 of November 10, 2021, in which the right to environmental consultation was developed.
The main reforms carried out by Decree No. 754 are the following:
1. The citizen participation process is reformed. This will no longer be governed by the technical standard of the Environmental Authority but by the one established in the RCODA, below. In addition, the majority opposition of those consulted is regulated, indicating that it is not binding. However, it is established that, if the environmental permit is granted despite majority opposition, it must be duly motivated.
2. All regulations in the RCODA regarding prior consultation with indigenous communities are repealed and Title III of Book III of the RCODA on the process of citizen participation for environmental consultation is amended:
2.1. It is established that the right to environmental consultation will consist of informing the community ” about the content of the environmental technical instruments, the possible environmental impacts and risks that could derive from the execution of projects, works or activities , as well as the relevance of the actions to be taken ”, record and compile your criteria, opinions and observations, and with this, consult you about the granting of the corresponding environmental permit.
2.2. It is added that the rules on the citizen participation process for environmental consultation are mandatory and apply in the case of an environmental license, always, and in the case of environmental registration for activities in the hydrocarbon and mining sector.
23. It is established that the citizen participation process for environmental consultation must be carried out prior to the granting of environmental permits. Additionally, the following changes are added to the process:
2.3.1. The Ombudsman’s Office must be notified so that this entity can proceed to provide support to the community and monitor the process. Their participation is mandatory, however, their unjustified absence will not lead to the nullity of the process.
2.3.2. The operator of the project, work or activity must deliver to the competent Environmental Authority the environmental technical instruments that it requires, as well as all communication materials or supplies for the didactic dissemination of such instruments (eg summaries, triptychs, slides, etc. ). All deliverables must be translated, when applicable.
2.3.3. To carry out the process, citizen participation mechanisms will be used, including the following: (i) Informative mechanisms (eg, informative assemblies, electronic pages, informative videos, delivery of informative documentation on environmental technical instruments, public information centers, workshops of environmental socialization, (ii) Call mechanisms (eg public call, personal invitations), and (iii) Consultation mechanisms (Consultation Assembly).
2.3.4. Special provisions to be considered when the consultation is carried out in the territories of indigenous peoples are included: provisions related to their ancestral languages and their forms of organization and decision-making.
2.3.5. The operator of the project, work or activity will be the one who must finance the environmental consultation process, its call and logistics. He must also provide all the facilities and provide all the necessary resources for its execution.
2.3.6. The process will be divided into two phases: (i) Informative Phase and (ii) Consultative Phase. The first is the delivery of information. In the second, there is a dialogue between the State and the community in order to present the opinions and observations of the community and consult regarding the issuance of the environmental permit.
3. The validity of all environmental permits that were issued before the reform is ratified. On the other hand, any project, work or activity registered in the SUIA until October 11, 2021 will follow the process prior to the reform. Processes initiated at a later date will continue with this reform, even if they have received a technical pronouncement, as well as projects, works and activities in the mining sector blocked in the SUIA by Judgment No. 1149-19-JP/21.
For more information contact:
Maria Rosa Fabara | Partner Bustamante Fabara | mrfabara@bustamantefabara.com