by Juan Manuel González | Aug 13, 2024 | Noticias-en
On January 10, 2023, the Organic Law to Promote the Violet Economy was issued and published in the Official Registry Supplement No. 234 of January 20, 2023. Article 18 of the law establishes that “(…) Company Equality Plans are a set of measures, adopted after carrying out a diagnosis of the situation, created with the aim of achieving equal treatment of opportunities between women and men in the company, eliminating discrimination of any type of gender and multiculturalism. Equality Plans will include the strategies and practices to be adopted to achieve them, as well as the establishment of effective systems for monitoring and evaluating the objectives set. Equality plans will include all departments of a company, without prejudice to the establishment of appropriate special actions with respect to certain work centers.”
Subsequently, through Ministerial Agreement No. MDT-2024-013 of January 19, 2024, published in the Official Registry Supplement No. 492 of February 5, 2024, the Ministry of Labor issued the Guidelines for the Registration of Equality Plans.
On July 29, 2024, Ministerial Agreement No. MDT-2024-099 was signed by the Minister of Labor Ivonne Elizabeth Núñez Figueroa with the purpose of updating the procedures and requirements for the registration of Equality Plans in companies with 50 or more workers.
In said ministerial agreement, the second paragraph of the First Transitional Provision of Ministerial Agreement No. MDT-2024-013 is amended, mentioning the following:
“Those employers who have a payroll of 50 or more workers must register the “Equality Plans” with the Ministry of Labor by July 31, 2025; and, once this period has concluded, the Ministry of Labor will proceed with the corresponding control and sanction process in case of evidence of failure to comply with the “Equality Plan”
In addition, it was indicated that the Ministry of Labor will proceed with control and sanction processes in case of non-compliance after this deadline.
If you require additional information, please contact the email laboral@bustamantefabara.com
by Juan Manuel González | Jul 30, 2024 | Noticias-en
On July 29, 2024, Resolution No. 710/2024 of the Ministry of Security was published in the Official Gazette of the Nation, creating the Artificial Intelligence Unit Applied to Security (“UIAAS”).
This new unit will operate within the scope of the Cybercrime and Cyber Affairs Directorate, which reports to the Cabinet of Advisors Unit of the Ministry of Security. The UIAAS will be headed by the Director of Cybercrime and Cyber Affairs and will include the participation of representatives of the Federal Police and Security Forces.
The mission of the UIAAS is the prevention, detection, investigation and prosecution of crime through the use of artificial intelligence. Its main functions include:
– Patrol social networks, applications and websites, as well as the “deep Internet” or “dark web”, to investigate crimes and detect security risks.
– Identify and compare images in physical or virtual format.
– Analyze security camera images in real time using facial recognition.
– Use machine learning algorithms to predict and prevent future crimes.
– Detect cyber threats before attacks occur, including malware and phishing.
– Process large volumes of data to create suspect profiles and establish links between different cases.
– Use drones for aerial surveillance and emergency response.
– Performing dangerous tasks, such as deactivating explosives, using robots.
– Improve communication and coordination between the Federal Police and Security Forces.
– Analyze social media activities to detect potential threats and anticipate unrest.
– Detect suspicious financial transactions that could indicate illegal activities.
The implementation of the UIAAS will be in accordance with the guidelines and directives established by the Ministry of Security Resolution No. 428/24.
It should be noted that, according to the Ministry of Security Resolution No. 428/24, during preventive work, police personnel must comply with the Personal Data Protection Law No. 25,326. Likewise, said resolution ignores that (i) it is strictly prohibited to handle sensitive data without judicial authorization, as well as to use publications by minors without due permission, and that (ii) if it is detected that the preventive activity involves a minor, it will be immediately suspended and the corresponding authorities will be notified, unless there is a risk to the life of the minor.
The scope and limits of the new UIASS’s actions, particularly when using technological tools to prevent criminal conduct, will have to be carefully analysed, taking into account potential problems regarding the right to privacy and the validity or legality of the actions of the security forces.
For more information and to access the full details of the regulation, please consult the following link: Resolution No. 710/2024.
by Juan Manuel González | Jul 30, 2024 | Noticias-en
The new Economic Crimes Law not only reconfigured the modifications of liability and incorporated a special system for determining punishment and alternative punishments in light of economic crime, but also added new criminal figures, whose limits and practical application have filled the business world with resentment.
One of them is that contained in article 134 bis of the Law on Public Limited Companies (LSA) which penalizes the illegality of abusive agreements that may occur in the boards of directors.
It is important to note that this crime, in its typical structure, punishes those who, taking advantage of their majority position on the board of directors of a corporation, adopt an abusive agreement to benefit or financially benefit another, to the detriment of the other partners and without the agreement bringing benefit to the company.
Next, we proceed to limit its scope of application to provide the following considerations:
First, the criminal type incorporated into article 134 bis was drawn up based on the text contained in article 291 of the Spanish Penal Code. Thus, the consideration of the latter, when resolving problems of interpretation and application of our criminal type, is essential for our dogmatics and jurisprudence.
In this sense, and to delimit the typical scope of the Chilean crime, it is necessary to keep in mind that, in light of Spanish dogma, the criminal type of abusive agreement has quite specific characteristics that we must consider.
As a reference, the offence only penalises, without prejudice to the other typical elements of the offence, those agreements that do not benefit society or do not respond to a rational need of the latter. In other words, it does not penalise the adoption of agreements that, even if they harm minority shareholders, benefit or respond to a rational need of society.
It is therefore essential for the configuration of the crime to have in view the “social balance” associated with the adopted agreement. For these purposes, the mere occurrence of damage to the minority is not sufficient.
Thus, agreements that are beneficial to society, despite harming minority partners, and neutral agreements, which respond to a rational need of society, even when harming minority partners, would be atypical.
Secondly, it must be considered that the benefit, harm or specific effect that an agreement has on the social interest must be determined in light of criteria of economic rationality that exceed the sole consideration of the immediate effects associated with a particular agreement.
Let us consider an agreement that initially generates an economic advantage for society, but which, in the long term, is detrimental to its interests. In this case, this initial advantage is completely irrelevant in terms of the definition of the criminal type of abusive agreement. The conduct may also be criminal. And the same applies in reverse.
Finally, we must mention that the typical conduct sanctioned must be limited to the adoption of those agreements that are suitable to cause harm to the other partners. In other words, if a certain agreement does not have the possibility of causing harm to the other partners, then it cannot be sanctioned as a result of the crime of abusive agreement.
However, these clarifications are merely indicative. There are other clarifications that must be considered in order to delimit the typical scope of application of Article 134 bis.
The Chilean criminal type, a mirror of the Spanish one, cannot be applied in a way that goes beyond its superficial meaning or contradicts its origin. There is already a guide, there are already substantive delimitations that can guide the application of this new crime in our law. And this cannot be ignored by our doctrine and jurisprudence.
To discuss these issues, you can contact our Criminal Litigation team:
Gabriel Zaliasnik | Partner | gzaliasnik@az.cl
Loreto Hoyos | Director of the Criminal Group | lhoyos@az.cl
David Segall | Senior Associate | dsegall@az.cl
by Juan Manuel González | Jul 29, 2024 | Noticias-en
On July 24, the Central Bank of Paraguay (BCP) approved, through resolution No. 12, the “Regulation of the QR Generation Standard for Electronic Payments in Paraguay”. This regulation establishes the requirements for the generation and use of QR codes in electronic payments within the country.
Key aspects of the new regulation
QR Code: A two-dimensional quick response barcode containing information necessary for payment services, which can be scanned, processed and transmitted securely by a device.
Dynamic QR Code : Code presented by the merchant that includes your data to complete the payment and the amount to be paid.
Static QR Code : Code presented by the merchant that includes your details to complete the payment, but not the amount to be paid.
EMV® QRCPS : QR codes developed according to Europay, Mastercard and Visa Common QR standards and guidelines.
Standardization requirements
Dynamic and static QR codes must be based on EMV® QRCPS standards.
QR code generation must follow the guidelines of the PY-QR Code Implementation Guide.
QR codes must include the PY-QR logo.
Requirements for payment service providers (PSPs)
PSPs that use electronic payments with QR code must register with the BCP, in accordance with the instructions and requirements established by the Sub-General Management of Financial Operations (SGGOF). The deadline to comply with these requirements and complete the corresponding registration is June 30, 2025.
The SGGOF will issue the PY-QR code implementation guide, which will cover all transactions related to the generation of QR codes for electronic payments in the country.
For more information
For additional questions or more details on how this Regulation may affect your business, you can contact consultas@ferrere.com.
by Juan Manuel González | Jul 22, 2024 | Noticias-en
In June 2024, the U.S. Supreme Court issued two landmark rulings, Securities & Exchange Commission v. Jarkesy and Loper Bright Enterprises v. Raimondo , each of which has broad implications for the powers of the executive branch. While neither decision specifically addressed the powers of agencies focused on national security or foreign policy, such as the Department of Commerce’s Bureau of Industry and Security (BIS) or the Department of the Treasury’s Office of Foreign Assets Control (OFAC), some of the broader language in these decisions could call into question the potential for these agencies, which are often granted broad regulatory deference and sweeping enforcement powers, to suffer an erosion of their authority.
Jarkesy – Let’s Leave Common Law Claims to the Courts, Not the Agencies
On June 27, 2024, the Court issued a decision invalidating the Securities and Exchange Commission’s (SEC) statutory authority to impose civil penalties for fraud violations in a forum outside of a federal court. The case concerned whether the SEC could impose a civil penalty against a defendant accused of fraud through the SEC’s internal administrative forum, rather than in federal court. Although Congress authorized the SEC to do so internally, the Court ruled that the SEC’s civil penalty action implicated the Seventh Amendment to the U.S. Constitution, which provides for a right to a jury trial in “common law suits.” The Court’s decision focused on the fact that civil monetary penalties had traditionally been imposed by common law juries, particularly in cases involving common law fraud.
Jarkesy Exception – Public Rights: Over the past 50 years, the Court has carved out an exception to the Seventh Amendment’s right to trial by jury in cases involving “public rights.” The Court made clear in its opinion in Jarkesy that this exception cannot be allowed to swallow up the general presumption in favor of a right to trial by jury before an Article III court and must be limited to cases analogous to those traditionally excepted from the right to trial by jury, including (but not appearing to be limited to) “the collection of revenue, the enforcement of customs laws, immigration, and the granting of public benefits.” Beyond this list of traditionally excepted “public rights,” the Court did not elaborate on a test for determining whether a claim falls within the public rights exception.
Loper Bright – Ambiguous Statutes Do Not Automatically Imply Deference by Agencies
On June 28, 2024, the Supreme Court issued a ruling that overturned the nearly 40-year-old doctrine known as Chevron deference , which required courts to defer to an executive agency’s reasonable interpretation of ambiguous statutes, even if the Court would have found a different interpretation to be best. Loper Bright reversed Chevron , holding that courts must, in interpreting an ambiguous statute, exercise their “independent judgment” in deciding the proper interpretation of the statute, and may not simply defer to whatever agency interpretation is permissible.
The Court rejected the view that agencies are experts best suited to interpret statutory ambiguities, noting instead that courts can do their “ordinary work” of interpreting statutes “with due respect for the views of the Executive Branch,” which can help inform a court’s judgment. This last point is important: While courts will no longer defer to any “permissible” interpretation of an ambiguous statute, they are still permitted to consider and give great weight to a well-reasoned interpretation of the statute by the agency. The better the agency’s reasoning, the more deference it will be given, and the more likely a court will find its reasoning to be the correct interpretation of an ambiguous statute.
Jarkesy and Loper Bright in the context of national security
Neither Jarkesy nor Loper Bright cited any explicit “national security” or “foreign affairs” exceptions in their respective opinions. Thus, unless challenged, the rulings in those cases may be applicable to agencies that administer and enforce national security-focused regulations, including those in the Treasury and Commerce Departments. Below, we discuss the potential implications of the cases for national security-focused agencies:
Jarkesy, in particular, creates potential limitations on agencies’ enforcement power regarding sanctions, export controls, and anti-money laundering (AML) violations, among others. Enforcement agencies such as OFAC, BIS, the Financial Crimes Enforcement Network (FinCEN), and the Committee on Foreign Investment in the United States (CFIUS) rely on authorities within their regulations to issue civil monetary penalties for potential violations.
OFAC, for example, can take a range of administrative actions pursuant to its regulations, such as unilaterally imposing civil monetary penalties or negotiating settlements with a potential violator of U.S. sanctions. Such broad enforcement mechanisms may leave a potential violator with little bargaining power with national security agencies and also serve to deter private actors from committing future violations.
It is unclear whether Jarkesy’s largely undefined “public rights” exception includes cases involving matters of national security or foreign affairs, particularly in cases involving the administrative imposition of monetary penalties imposed for fraudulent or willful conduct that may have required a jury trial at common law. Practitioners and their clients alike should pay close attention to future lawsuits challenging administrative penalties and, if appropriate, consider challenging such penalties based on the Jarkesy decision.
A potential increase in civil challenges to OFAC, BIS, FinCEN and CFIUS regulations .
Historically, there have been few instances in which private actors have successfully challenged national security agencies’, such as OFAC’s, interpretations of statutes within their area of expertise. Moreover, Loper Bright left intact the Court’s 2019 decision in Kisor v. Wilkie, which held that some deference should be given to an agency’s interpretation of its own ambiguous regulations, provided that the regulations are truly ambiguous and the agency’s interpretation is reasonable and, in fact, a product of its own expertise. Reversing the Chevron doctrine and limiting agency deference could prompt further limitations to the Kisor rule, thereby providing an easier path for potential litigants to challenge national security agencies’ increasingly numerous and complex regulations.
All of this is taking place against the backdrop of a raft of new regulations or notices of proposed rulemaking (NPRMs) issued by the Biden administration regarding technology-related investments to and from China. While such rules and NPRMs could go into effect in the near future, they are likely to face challenges, according to Jarkesy and Loper Bright.
For more information, please contact:
Timothy P. O’Toole, totoole@milchev.com, 202-626-5552
Laura Deegan, ldeegan@milchev.com, 202-626-5942
Caroline J. Watson, cwatson@milchev.com, 202-626-6083
Melissa Burgess, mburgess@milchev.com, 202-626-5914
Manuel Levitt, mlevitt@milchev.com, 202-626-5921
Annie Cho, acho@milchev.com, 202-626-1570
