by Juan Manuel González | Mar 25, 2024 | Noticias-en, Opinions
Introduction
The choice of the title is not arbitrary and advances our opinion that giving space in these areas and, in all, to women is not an exercise for diversity, because, among other reasons, not even numerically, women are a minority. If this is not the case, it does not seem reasonable that, in specific areas, gender should be treated this way.
We chose this topic because we frequently see spaces for discussion about the inclusion of women in the Latin American labor market. However, there are fewer spaces that deal with the inclusion of women in the administration and representation bodies of public or private legal entities.
Data
The World Economic Forum report, in reference to the “Global Gender Gap” of June 2023, indicated that, in general terms, it will take 53 years to close the gender gap in Latin America and the Caribbean.
In particular, the push to increase the role of women on boards may be even slower, compared to that in other areas of activity. In a work by the OECD2 “OECD Corporate Governance Factbook 2023” the following data is indicated in relation to the participation of women on the boards of directors of listed companies in the following Latin American countries:
As can be seen, inclusion in these forums is low. The acceleration of the inclusion of women in these areas has been handled in different ways depending on the country. Some propose state intervention through regulations (for example, with the establishment of mandatory quotas). Other countries have opted to disclose the gender composition of board members; while another group has established less rigorous mechanisms, such as the setting of voluntary objectives or goals or simply a collaborative approach.
To mention a case that is familiar to us, in India, according to the Companies Act, 2013 as amended, the participation of at least one woman on the boards of directors of companies is required.
According to a Harvard Business Review article “What Happened When India Mandated Gender Diversity on Boards”3, this movement began in 2003 in Norway, which established that boards should have 40% women in their composition. However, as also noted in the aforementioned work, it has been suggested that the response to these initiatives may result in the election of women to join the boards of directors with the sole purpose of complying with the law with the quota requirements without their presence can be considered legitimate. Likewise, one of the effects of the original Norwegian quota is that a small group of prominent women were appointed as directors in multiple companies.
According to the same work, this effect did not occur in India, where the law managed to significantly expand the group of different women who served as directors.
Some reflections
We asked ourselves, then, whether the issuance of standards would be the most effective way to increase the real participation of women on company boards.
It seems clear that a regulation of this nature requires, among other measures, prior attention to the issue of women’s participation in leadership positions, to avoid the repetition of phenomena such as the reports of concentration of appointments in few women or of lack of legitimacy. It is necessary, then, to educate and encourage the occupation of these spaces and not only impose participation.
And in all this, companies have a main role in adjusting their organizational culture and business administrative perspective. A company with a perspective of integration, diversity and gender focus should be a pioneer in these issues, enhance and promote it from its basic core, without waiting for the existence of an obligation. And this reflection is even more applicable to business conglomerates that are established. in different jurisdictions since it would not make sense to adopt a gender quota according to legislation if active and global policies for the participation of women in all positions and also on boards of directors are not maintained. This will imply a change and will generate resistance, but it cannot be postponed.
By Ana Cristina Peña, Crime Prevention Officer Latin America at Tata Consultancy Services.
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1 World Economic Forum “Global Gender Gap 2023” retrieved from https://www.weforum.org/publications/global-gender-gap-report-2023/ consulted on March 18, 2024.
2 OECD (2023), OECD Corporate Governance Factbook 2023, OECD Publishing, Paris, https://doi.org/10.1787/6d912314-en consulted on March 18, 11, 2024.
3 HBR “What Happened When India Mandated Gender Diversity on Boards”, February 2021 retrieved from What Happened When India Mandated Gender Diversity on Boards (hbr.org)
by Juan Manuel González | Mar 22, 2024 | Noticias-en
Uruguay leads international rankings in terms of transparency and lower perception of corruption in the region.
According to the Corruption Perception Index for the year 2023, prepared by the non-governmental organization Transparency International , Uruguay is perceived as the most transparent country in Latin America, with a total of 73 points out of 100 possible (where 0 is equivalent to a perception of high levels of corruption), consolidating its leadership position in the region as it has done in previous years. With this score, Uruguay is placed in 18th place out of a total of 180 countries, with Canada being the only American country that surpassed Uruguay with a score of 76 points.
According to the Transparency International report, “ more than two-thirds of countries obtain a score of less than 50 out of 100, which indicates that they have serious corruption problems. The global average is stuck at just 43 points, while the vast majority of countries have made no progress or have declined in the last decade .”
Likewise, according to the 2023 Democracy Index (prepared by The Economist Intelligence Unit ), Uruguay ranks 14th globally, and is positioned as the leading nation in democracy in Latin America. The report analyzes the situation of 165 countries, evaluating measures such as the electoral process and pluralism, government functioning, political participation, political and democratic culture, and civil liberties. According to this last index, Uruguay obtained a score of 8.66 out of 10 and placed first in the Latin American ranking.
The Economist assures in its report that at a global level there is a fall in democracy, while in Latin America the fall is dramatic. The index shows that just over 1% of the population of Latin America and the Caribbean lives in a full democracy, 54% in defective democracies, 35% in a hybrid regime (between imperfect and authoritarian), and 9% in authoritarian regimes.
Uruguay seems to be an exception in the global and regional panorama. Without a doubt, this privileged place in international rankings will be another of the attractive advantages to be appreciated by investors when considering their installation or stay in Uruguay.
For more information contact:
Carla Arellano | Counselor Ferrere | carellano@ferrere.com
by Juan Manuel González | Mar 19, 2024 | Noticias-en, Opinions
In the field of corporate compliance, the effective implementation and implementation of programs and systems for the prevention and management of risks such as money laundering and corruption is increasingly important. One of the most recent documents from the United States Department of Justice (DOJ) points to this conclusion, which consists of a guide for the evaluation of corporate compliance programs, aimed at federal prosecutors in charge of prosecuting companies for participating in acts of corruption and transnational bribery, in application of the Foreign Corrupt Practices Act (FCPA).
The aforementioned guide is intended to give prosecutors tools to “make informed decisions about whether, and to what extent, the company’s compliance program was effective at the time of the crime and is effective at the time of the accusation” in order to determine its merit to exonerate liability or mitigate the penalty imposed on the company. The second of the three cardinal aspects that the guide gives to evaluate the programs, inquires about whether the company’s compliance program has adequate resources and powers to function effectively, and the third of the criteria to answer this question is directly related with compensation and consequence management structures, in other words, establishing incentives for compliance and disincentives for non-compliance.
The Superintendency of Companies of Colombia, as regulator of the most extensive compliance programs in the country (SAGRILAFT and PTEE), shares the opinion that sanctions and compensation schemes are an important, even essential, element of an effective compliance program. Therefore, both Circular 016 of 2020 (SAGRILAFT) and Circular 011 of 2021 (PTEE) instruct obligated subjects to include this element in their programs, as follows:
– Section 5.1.2. of Circular 016 of 2020 says that: “The SAGRILAFT must include sanctions or consequences for employees, administrators, associates or third parties, for non-compliance or non-observance of its provisions.”
– Section 5.1.5.3.2, literal g, establishes that the compliance officer must implement “internal investigation procedures in the Obligated Entity to detect non-compliance with the PTEE and Acts of Corruption”; and section 5.1.2. It says that “the PTEE must include, in a clear and simple way, the consequences of violating it.”
Additionally, the Superintendency clarified, in Official Letter 220-091819 of July 11, 2021, that “the obligated subjects will determine the mechanisms that will allow them to evaluate, monitor and control the risks and, in turn, will establish the relevant sanctions for non-compliance with the system in accordance with its organizational structure, sanctions that must cover both employees, administrators, associates or third parties. (…) Therefore, it is up to each obligated company to determine, in each particular case and in accordance with the characteristics of its organization, the sanctions applicable to associates who fail to comply with SAGRILAFT.”
Colombian companies that have been implementing these programs since 2016 have focused on following the regulations’ instructions to the letter, including simple sanctioning regimes in their compliance systems. In practice, the most common scheme consists of classifying non-compliance with the duties and obligations derived from compliance policies and procedures as disciplinary offenses, and the compliance area, in these cases, usually plays the role of investigator who presents the case. before the disciplinary authority. The consequences for non-compliance have then been limited, with good judgment, to what is permitted by labor regulations, from reprimands to suspensions from their duties without remuneration, and in serious cases even the termination of the employment contract with just cause, after developing a disciplinary due process. It is worth remembering that, according to the substantive labor code, disciplinary sanctions with pecuniary consequences are completely prohibited, except in cases in which the worker has unjustified delays or absences, in which case the hours or days not worked can be deducted from the salary. Such regulation completely prevents the imposition of economic sanctions for lack of compliance.
On the other hand, incentive or compensation schemes to encourage compliance seem to still be a field insufficiently explored by companies, which is a real shame because, although there are currently insufficient parameters to measure the effectiveness of adopting compensation schemes in compliance programs, the truth is that in other areas of the development of corporate culture, incentives have proven to be useful tools to promote cultural changes and the internalization of corporate values, so, from the perspective of corporate compliance, it would be a practical recommended to help translate paper compliance programs into the reality of companies.
Contrary to the situation in the United States, Colombian regulations do not require or suggest specific models of incentives and sanctions as a mandatory requirement in compliance programs. The assessment of these programs within the framework of the administrative sanctioning procedure lacks detailed government guidelines, and there is nothing to indicate that the compensation and sanction schemes are rigorously evaluated as a component of effectiveness to mitigate the administrative responsibility of legal entities in the framework of the sanctioning procedures initiated under the Anti-Corruption Statute (Law 1474 of 2011) and the Transnational Bribery Law (Law 1778 of 2016). However, Colombian regulation tends to imitate North American trends, which have become a true compliance standard for Latin America, therefore, it makes sense that we begin to take the tools seriously to make our compliance programs true instruments. for the prevention and management of risks in companies.
BONUS: Some ideas on incentive and sanction schemes to reinforce the compliance culture in your company:
Incentives:
• Public recognition: Reward ethical and transparent employees in meetings or internal communications.
• Ethical bonus program: Offer financial bonuses to employees who demonstrate outstanding ethical behavior.
• Ongoing training: Provide ethics and compliance training opportunities, with incentives for completing courses and certifications.
• Extra days off: Provide extra days off as a reward for maintaining high ethical and compliance standards.
• Participation in decision-making: Invite ethical employees to participate in key decision-making processes to foster their commitment.
Sanctions:
• Temporary suspension: Impose temporary suspensions on those who violate ethics or compliance policies.
• Affected performance review: Link performance evaluation to ethical conduct, so that those who do not comply face consequences in their reviews.
• Phased removal process: Implement a system of progressive warnings before termination for cases of unacceptable ethical conduct.
• Prohibition of promotions: Prevent promotions and promotions for those who have violated ethical policies until they demonstrate a change in their behavior.
It is important to adapt these measures according to the culture and specific needs of the company, promoting a balanced approach between incentives and sanctions to achieve effective results.
By Nicolás Castro Márquez, corporate criminal lawyer, Posse Herrera Ruiz.
by Juan Manuel González | Mar 13, 2024 | Noticias-en, Opinions
Last January, Fundación Generación Empresarial presented the results of a study that has been carried out annually for 18 years. A total of 165 public and private institutions, for-profit and non-profit, large and small, were encouraged to be part of the Recognition of Commitment to Integrity, a process that allows them to know how they live the values, and which culminated with a ceremony that He distinguished those that stood out the most. This is the largest number that has participated in this activity that includes the application of the Barometer of Values and Organizational Integrity and the delivery of documentation that certifies good practices. More than 45 thousand people from all walks of life responded to this survey about the advancement of the “culture of integrity” in their workplace, communicating with actions and not words, that integrity is a central value in their work, and that they are making genuine efforts to improve themselves.
On average, people who responded to the Barometer expressed themselves positively about the place where they work. They said that there are established values and they are promoted (87%), that they are actively disseminated (82%) and that managers act in accordance with them by setting an example (72%). They also expressed concern that their organization could become involved in corruption scandals (one in three people). These figures are reason to be optimistic. But the situation in the country makes us be cautious because, in the circumstances we live in today, it is not integrity that monopolizes the headlines, but corruption.
The Barometer measures perceptions and the Accreditation Guidelines record the institutionalization of practices of the Ethics and Compliance Program. Today we talk about “compliance” to refer to the legal requirements that must be met, but if this becomes an issue that is entrusted only to lawyers, it does not help much. This way, behaviors are not changed much.
The focus should be on corporate governance and culture, that is, the way things are expected to be done, how the organization is run and decisions are made at the top level. This implies that “the tone at the top”, which refers to the actions promoted by managers, must be effective in strongly communicating the ethical implications of behavior at all levels of the organization. Your message should be that you have to strive to “do things right,” and that you trust people’s ability to self-regulate their behavior. The best way to make this message credible is through ethical leadership that “speaks from action” and “zero tolerance” for abuse and corruption.
Not only people with values-based behavior win. Whoever acts accordingly, whatever their role, will feel the satisfaction of having done their best and this will have a positive impact on the work environment. The same goes for organizations. Their effort to get things done supports the integrity of the entire country. Hence the importance of all organizations “dare to be better.” Measuring yourself is the first step of change, as it shows the intention to renew yourself. But we must move beyond measurement… it is time to act.
By Fernanda Hurtado, General Manager FGE and Compliance Latam Collaborator.
by Juan Manuel González | Mar 11, 2024 | Noticias-en, Opinions
Strategic litigation, also called impact litigation, is a tool whose use is increasingly frequent and that helps achieve gender equity. It is important to understand what it is and what its scope is, to encourage its use in the future and continue developing advances in this matter.
For some time now, but particularly in recent decades, society has begun to care about achieving gender equality. This concern has been presented to politicians, leaders and governments in many ways, but particularly through demonstrations. It is true that civil society has been one of the great drivers of this impulse, but the work of organizations that have equity as an end in themselves must also be recognized.
These organizations have been fundamental in promoting public policies so that governments establish the foundations to eliminate inequality and provide equal opportunities to all.
However, it is common for governments, and particularly legislative powers, to not fully understand the requests that society makes on these issues. This can often happen due to machismo or even lack of vision to understand that a problem exists. This is not surprising, given that congresses are representatives of societies; These same societies suffer from the same problems, and that, in the best of cases, are just beginning their deconstruction processes.
That is why public policies that do not comply with international equity standards have been legally controversial, either because their purpose is not well understood or because the way these policies are applied does not contribute to achieving the objective of equity.
This is where strategic litigation comes in as a way that opens avenues of protection through the use of judicial tools. Strategic litigation represents the person with a particular situation and common requests from minority groups, which perfectly exemplify problems in laws and policies that could not otherwise be understood.
To demonstrate that a law is incorrect, develop a trial and challenge the norm that was applied to a specific case with specific circumstances and people, it will always be much easier than warning of its unconstitutionality in an abstract way.
In Mexico, and in the rest of the world, important precedents have been established in this matter, such as, for example, in criminal matters, the right for a woman not to be punished for performing an abortion.
Also, it was through a series of trials that differences between men and women in labor matters were reduced. This included cases where it was prohibited to fire pregnant women, questioning the policy that only provided daycare services to working women, but not to working men; endorsing the idea that, if a man worked, he did not need that benefit because surely his wife would not work and take care of the children.
In addition, the possibility of recognizing home work with the same rights as any other was opened. This allowed the establishment of pensions for women who remained in charge of the home while their husband worked, and also generated a social security system for domestic workers that allows them to enjoy benefits on a par with any job.
In administrative matters, it is important to highlight the interpretations of the scope of reparation for victims by state bodies, including the acceptance of responsibility, which has often led directly to modifying public policies and discriminatory legislation.
These matters have not only provided benefits to the people who promote such lawsuits, but they also generate precedents that can be applied by lower or local courts in similar matters, and in some cases they have even managed to boost the interest in carrying out legislative reforms and even constitutional ones to establish rights and their scope and the way in which governments should respond to the problems that women face.
These changes are fundamental, and although they are not rapid, they end up influencing society and individuals in the long term, thus causing societies to modify their rules in favor of equity.
Within the framework of Women’s Day, it is necessary to highlight and remember these types of tools, as well as celebrate the lawyers who, generally on a pro bono basis , seek the creation of equal opportunities and the end of gender-based violence. through the defense of affected people. The same with the organizations that give meaning to law and public policies every day so that they have better access to justice.
Last but not least, it is necessary to recognize the judges who, with progressive vision and often with considerable courage, provide the cases with the emblematic sentences that are celebrated on days like today.
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By, Diana Rangel León, Bashan, Ringe and Correa Counselor.