by Juan Manuel González | Apr 3, 2023 | Noticias-en
Through Executive Decree No. 570 published in the Official Gazette at the end of 2022, the President of the Republic modified the Regulations for the Application of the Organic Law for the Regulation and Control of Market Power, with which changes are introduced to the current regime of competition law. Here is a summary of the most relevant changes:
1. Article 4 is reformed, introducing the standard of ” general welfare of consumers ” to determine the existence of an affectation to competition; and, therefore, anticompetitive conduct. Said reform establishes that this concept should be applied preferentially, which, in practice, implies that in its investigations the Superintendence for the Control of Market Power (“SCPM”) should preferably analyze whether the conduct investigated could lead to higher prices for consumers. The adoption of this standard is interesting, at a time when, worldwide, there is debate about the effectiveness or not of this criterion, particularly with respect to digital platforms.
2. In article 5, it is clarified that the calculation of the volume of business must be carried out according to the relevant market. This limits the calculation for the establishment of fines only to the sales of the economic operator in the market under analysis; something that already happened in practice.
3. In article 8, a subparagraph is added whose purpose is to limit what can be considered as a restrictive practice by object (a conduct in which, its mere existence, can be considered anticompetitive), only when there is a doctrinal consensus about its restrictive nature and the absence of potential positive effects; and that there are repeated decisions that have confirmed its anti-competitive nature. In practice, the ability of the SCPM to define a conduct as a restriction by object is limited, which would require a more in-depth analysis of its anticompetitive effects.
4. Through the reform of article 47, an operational structure is granted to the Regulation Board. The Regulation Board is a body directed by the Executive that can issue guidelines and regulations on the application of competition law.
5. Through the reform of article 105, the sanction for failure to provide information is restricted to the application of coercive fines only.
6. Finally, article 89 is repealed, thereby eliminating the obligation to establish a temporary auditor in cases of abuse of market power due to economic dependency.
For more information contact:
Daniel Castelo | Senior Associate Bustamante Fabara | dcastelo@bustamantefabara.com
by Juan Manuel González | Apr 3, 2023 | Noticias-en
The entities that make up the National Integrated Consumer Protection System intensified their education, orientation and dissemination activities during the past year, specified the Annual Report on the state of consumer protection in Peru-2021, prepared by the National Institute of Defense of Competition and Protection of Intellectual Property (Indecopi).
The entity indicated that the document summarizes the monitoring of the main actions carried out during 2021 by the various member agents of the system, in the context of their respective powers and autonomy.
Likewise, he explained, it is an important input for strengthening the various actions deployed in the field of consumer protection and the evaluation tool of the actions carried out within the guidelines of the current National Policy for Consumer Protection and Defense.
Context
The report indicated that the actions of the various entities that make up the consumer protection system were influenced by the effects derived from covid-19, the easing of sanitary measures and the progress of the vaccination process.
This situation had an impact on a reconfiguration of the market, both at the level of consumer habits and the way providers and entities proceed in terms of consumer protection, he stressed.
In this context, he said, there was evidence of a massive participation of the entities in activities of education, guidance and dissemination, purely preventive.
In 2021, the education activities benefited 286,000 agents (consumers and providers), while the coverage of the orientation activities was 1,797,352 attentions, it revealed.
In the case of dissemination, he highlighted a greater development of tools aimed at agents by the various entities, among which Facilito de Hidrocarburos (19.4 million accesses), Reporta IMEI (5.5 million accesses) and Reporte de Deudas SBS ( 1.4 million views).
conflicts
On the other hand, the occurrence of consumer conflicts in the sectors registered a growing behavior in 2021. The claims resolved in the companies under the scope of the regulators (electricity, telecommunications, water and sanitation; and transport infrastructure) showed diverse results. .
Telecommunications companies exceeded 1.6 million (15.4% higher); those of energy and gas were located at 279,475 (higher by 21.2%); and sanitation, in terms of claims filed, fell 19.3% to 467,353. In companies related to transportation infrastructure, claims grew by 11.6% to 8,265.
On the other hand, the claims resolved in companies of the financial, insurance and AFP sectors increased 2.6% to close to 3.2 million; while the claims concluded in Indecopi increased by 19.4% to 112,560.
Conclusion
In the form of a conclusion of the conflicts, the report reveals the performance of the companies in the first instance (which corresponds to what was resolved by the operator).
Thus, three out of every ten claims resolved by telecommunications companies ended in favor of the consumer (31.5%), while two out of every ten claims resolved in energy and gas companies ended in favor of the consumer (18.2%).
In addition, three out of every ten claims resolved in transportation infrastructure companies ended in favor of the consumer (32.2%). Likewise, 56.7% of the total claims resolved by firms in the financial, insurance and AFP sectors ended in favor of the consumer.
On the other hand, in 91% of the claims presented before Indecopi and that went through the conciliation and mediation phase, a solution was reached.
Regarding alternative dispute resolution mechanisms, he highlighted the progress reported by the Pilot Consumer Arbitration Board attached to Indecopi, which showed a growth in requests (92.5%), reaching 2,814.
Meanwhile, the private conflict resolution mechanisms reported 5,918 resolved claims, highlighting the shorter terms of Alóbanco and Aló Seguros compared to those of administrative procedures that are processed in the State.
Training
In 2021, he highlighted the continuous implementation of more than 2,220 training activities from various entities. The main issue addressed was related to the rights of consumers in the provision of services, highlighted the report.
For its part, the National Council for Consumer Protection held 14 sessions, of which 10 were ordinary and four extraordinary (with which it accumulated 124 ordinary sessions and 12 extraordinary between 2011 and 2021).
In the performance of his duties, he highlighted the approval of the Annual Report on the State of Consumer Protection 2020; and the presentation of the fourth deliverable of the adaptation of the National Consumer Protection and Defense Policy to the Presidency of the Council of Ministers (PCM).
The council also participated in 17 work groups at the national level with other public entities, providers and society to identify problems that affect consumers in the education, financial, telecommunications and sanitation sectors, as well as at the regional level. In addition, he participated in 55 working groups on consumer protection.
Source: El Peruano
For more information contact:
Mario Pinatte | CPB Partner | mpinatte@cpb-abogados.com.pe
by Juan Manuel González | Apr 3, 2023 | Noticias-en
In October 2021, the INAI hosted the most important event on privacy and data protection in the world: the Global Privacy Assembly (GPA), which in its 43rd session included experts from various nations, who concluded that information technologies Information and communication (ICTs) are a transcendental factor for the life and future of humanity, crucial in the processing of personal data.
Within the new technologies, the blockchain and artificial intelligence (AI) stood out in particular , as well as a scheme to follow for public and private entities; the so-called “compliance” that monopolized the debate and discussion tables.
Blockchain technology is a system that allows a community to share, collect or distribute digital information or transaction data from multiple sources, without these being able to be copied or altered, except with the permission of each of the members or participants. . The data or information is divided into shared blocks that are chained with unique identifiers, which gives it integrity as it is a single source of truth, thus eliminating duplication and increasing security, preventing fraud and manipulation of the data since it is impossible to alter them without the permission of the group.
Initially designed to guarantee digital currency or cryptocurrencies such as “bitcoin”, technological developers are finding other potential uses, since by allowing any digital information to be distributed, but without being copied, it makes it possible to carry out thousands of operations safely, with which, the personal data required to carry them out will be protected in the same way.
Needless to say about the AI; we are waiting for the great discoveries that will change our world; movies and series present a futuristic scenario in which intelligent robots surpass us and have practically taken over our planet. Although a machine with autonomous consciousness, totally self-sufficient from any human interference, has not yet been developed, AI, understood as systems or machines that imitate human intelligence to perform tasks and that can improve them based on the information they collect. , is a reality.
The engines of our smartphones, computers or televisions show us specific recommendations based on our searches and consumption habits: applications that simulate conversations and provide automatic responses ” chatbots ” use AI to understand user problems and provide more effective responses; intelligent assistants use it to analyze large amounts of information and improve programming. In essence, AI works off of the personal data it collects.
Regarding the ” compliance“we must understand it as the set of procedures and good practices adopted by organizations in order to identify, alert and report operational and legal risks that they face, such as sanctions, financial losses and risks due to loss of reputation, as a result of non-compliance of laws, regulations and codes of conduct, as well as to provide advice and establish internal mechanisms for prevention, management, control and reaction against them. This regulatory compliance has in the right to the protection of personal data one of its most sensitive areas; The applicable laws and regulations on the matter establish a series of obligations and duties for those responsible for the treatment, which if not observed could lead to serious consequences, including large fines.
Blockchain technology , artificial intelligence and compliance converge in terms of personal data; They find in these an essential element for their functioning and operation, without which it is simply impossible for them to function.
Source: The Financial
For more information contact:
Juan José López de Silanes | Partner Basham, Ringe and Correa | lopez_de_silanes@basham.com.mx
by Juan Manuel González | Apr 3, 2023 | Noticias-en
Uruguay does not regulate corruption in the private sector. When we talk about corruption in our country, we associate it with public officials. Today, the same behaviors committed by public officials if committed by individuals, fall under other criminal figures different from corruption crimes. Private bribery is not a crime under Uruguayan law.
However, Uruguay ratified the United Nations Convention Against Corruption (UNCAC) in 2006 (Law No. 18,056), which deals with private corruption, urging States to adopt measures to prevent corruption and improve accounting standards and auditing in the private sector. However, to date corruption in the private sector has not been regulated.
Draft bill in charge of the JUTEP
Law No. 19,797, in force since March 1, 2020, commissioned the Board of Transparency and Public Ethics (JUTEP) to prepare a bill that analyzes and provides for measures to prevent corruption in the private sector.
Technical advice from UNODC and participation of the business sector in the preparation of a policy on private corruption
The United Nations Office against Drugs and Corruption (UNODC) is technically advising the JUTEP, in the elaboration of the aforementioned bill.
Within the framework of this advice, an event organized by the Global Compact, UNODC and Ferrere Abogados was held on December 7, with the purpose of having the Uruguayan business sector work on the co-design of this anti-corruption policy for the private sector. .
The event was attended by experts from the aforementioned offices, as well as the highest authorities of the JUTEP, Chamber of Commerce and Services of Uruguay, Union of Exporters, National Association of Micro and Small Companies (ANMYPE), National Secretariat for the fight Against Money Laundering and the Financing of Terrorism (SENACLAFT) and representatives of both national and multinational companies.
In the event, the current regulations were reviewed, opinions were exchanged and feedback was provided to the design of the anti-corruption public policy on which the JUTEP is working.
Conclusions of the event on private anti-corruption policy
The event concluded that a policy on corruption in the private sector should include the following elements:
- Apply to: (i) sectors that are contractually linked to the State (pharmaceutical, energy, construction, logistics), (ii) companies that exceed a certain level of income or assets, and (iii) companies that can exercise a dominant position in the local market.
- Provide a system of administrative responsibility – not criminal – of legal persons. Criminal responsibility would continue to fall solely on individuals.
- Impose a gradual regime of sanctions (warning, observation, fine, temporary or permanent suspension, temporary or permanent ban on contracting with the State, loss of eventual benefits granted by the State, cancellation of legal status with the possibility of redeeming the company) .
- Public regime of defaulters.
- Criminalize new crimes in the private sector such as local and transnational bribery, influence peddling (including regulation of lobbying or pressure groups), collusion, embezzlement or embezzlement of assets, money laundering (including private corruption as a predicate offense), and behaviors that violate the transparency of accounting records.
- The JUTEP could be the body in charge of monitoring compliance with a possible regulation, in relation to the administrative responsibility of legal persons, while the specialized Prosecutor’s Offices would be for crimes that are established related to private corruption.
- System of credits and reduction of sanctions in favor of companies that have effective corruption prevention programs, and the eventual granting of certain benefits when competing in contracting systems with the State.
Effective anti-corruption compliance programs in the private sector
Although Uruguay does not have specific regulations on private corruption, to date several of the local companies and, above all, multinationals with activity in Uruguay, have their own anti-corruption programs, including both corruption in the public sector and in the private sector. private.
These programs are of varied scope, made according to the values and principles of each company, and sometimes respond to internal policies of foreign parent companies. In general these programs include:
- Risk analysis and preparation of risk matrices.
- Codes of ethics or conduct.
- Integrity policies and procedures.
- Governance rules that indicate the obligations and responsibilities of the different participants in the company (shareholders, board of directors, audit committee, compliance officer, heads and managers, etc.).
- Regular and differentiated training.
- Support from senior management and management.
- Internal reporting channels, open to company members and also to third parties, therefore their adequate dissemination is important.
- Whistleblower protection policy.
- Complaint investigation protocol.
- Due diligence of third parties, business partners, including suppliers, distributors, service providers.
- Due diligence in mergers and acquisitions processes.
- Monitoring, auditing and continuous evaluation of the effectiveness of the anti-corruption compliance program.
- Appointment of an internal manager with a focus on “corruption”.
Having effective integrity programs benefits companies, not only because of the proper management of their risks (operations, reputational, etc.), but also because they generate an important business opportunity, either because they do not have these tools , are not taken into account as suppliers; or because by having them, they become more attractive companies for shareholders and investors.
For more information contact:
Carla Arellano | Counselor Ferrere | carellano@ferrere.com
by Juan Manuel González | Apr 3, 2023 | Noticias-en
Complaint channels are a key tool for companies that wish to implement a corporate culture of integrity and have safer work spaces .
In this context, the az Compliance team invites you to review four myths about reporting channels that organizations should consider during their implementation to obtain better results and avoid situations that may affect their collaborators.
- Not receiving complaints is synonymous with doing things right
This is perhaps one of the biggest myths surrounding reporting channels. Many companies welcome the fact that no accusations or reports have been received, but the truth is that this may be linked to other factors such as:
- Lack of knowledge of the existence of a whistleblowing channel where irregular situations can be reported.
- Lack of confidence that whistleblowers will not be retaliated against.
- Lack of knowledge about how the channel works and what it is for.
This can be detrimental to a company, since many times irregularities cannot be detected unless someone raises their voice and reports it.
- The reporting channels are for internal use only.
The truth is that there is no single way to implement a complaints channel. However, many times it is believed that this is only for the use of workers who are part of the company or organization, since there are circumstances in which it may be open to other interest groups.
In this way, companies can open up to receive information, reports or complaints from external people such as suppliers, customers and neighbors. The foregoing is relevant since those who interact with the company are not only its workers. For example, a supplier may be the subject of an illegal requirement, a client a witness of how fraud is committed, and a neighbor of non-compliance with regulations that could affect the community where the business is located. Thus, it is relevant to be able to enable a mechanism through which external parties can inform and alert the company of what happens when it interacts with them.
- It is enough to launch a complaints channel for it to start working
Although the adoption and launch of a whistleblowing channel is a big step, it is not enough just to have a platform, email or telephone line for it to work. The work to implement this resource must necessarily be accompanied by a series of actions that must last over time so that workers are aware of its existence and begin to use it, such as:
- Communication actions that report on the existence, use and access to the channel.
- Training on what can be reported and the procedure that the company will adopt when receiving one.
- Facilitate access by various means for workers who are located in relocated sites or whose positions do not have access to corporate computers for personal use. This can be done by setting up a mailbox to receive written complaints, making a device that has access to the channel available to workers and/or setting up a telephone line.
Likewise, the organizations must in turn prepare an investigation protocol that details the process and stages that will be triggered in the event of receiving a complaint, which must contain deadlines, responsible parties, measures that can be adopted, etc.
- It is not necessary to process or respond to all reports
Although an organization may receive information that is not of interest to it or whose treatment does not correspond to that of a complaint as such, it is important that a response is always delivered to those who resort to this tool.
The foregoing, since if no response is received, both workers and interest groups may lose confidence that the use of the channel is useful for something, and thus, not use it in the event of witnessing an irregularity in the future.
Thus, it is recommended that companies and organizations prepare a response protocol in which, even when the information received does not correspond to that which should trigger an investigation, there is some communication in which, for example, the owner of the report is informed that that must be processed through another mechanism or addressed in another way.
For more information on these issues, you can contact our Compliance group:
Francesca Franzani | Compliance Group Director | ffranzani@az.cl
Florence Fuentealba | Compliance Group Associate | ffuentealba@az.cl
by Juan Manuel González | Apr 3, 2023 | Noticias-en
By SDCU Resolution No. 1733/2022, published in the Official Gazette last November, the Consumer and User Defense Secretariat (SEDECO) regulated subsections d) and e) of article 6, and subsections c) and f) of article 14 of Law No. 1334/98 “Consumer and User Defense”, typifying the following abusive commercial practices:
- Telephone calls and other commercial communications made by any other means, outside of 08:00 a.m. to 06:00 p.m. Monday through Friday, and from 08:00 a.m. to 12:00 p.m. on Saturdays;
- Claims for debts made through telephone calls and communications by any other means, to third parties other than the consumer, such as personal references, family members or their place of work and others;
- The collection of sums of money – set arbitrarily by the suppliers – for claims made through telephone calls or other means used regularly in the market.
Additionally, it is established that those providers that incur in this type of practices will be liable to be penalized for violation of Law No. 1334/98 of “Defense of the Consumer and the User”, its modifications and regulations.
For more information contact:
Carla Arellano | Counselor Ferrere | carellano@ferrere.com
