by Juan Manuel González | Apr 13, 2022 | Noticias-en
During September 2021, Law No. 21,369 was published in the Official Gazette of Chile, which regulates sexual harassment, violence and gender discrimination in the field of Higher Education . This responds to the different demonstrations that have been carried out, in recent years, in the different study houses throughout the country, in which protocols and sanctions were required in these cases.
Article 1 of the law clearly establishes what the objective of the law is: to promote policies aimed at preventing, investigating, punishing and eradicating sexual harassment, violence and gender discrimination ; protect and repair the victims; establish safe environments free of sexual harassment, violence and gender discrimination, for all people who attend higher education academic communities.
The law requires higher education institutions to have a comprehensive policy against sexual harassment, violence and gender discrimination , which must contain a prevention model and a sanction model . In addition, it is required that all the levels that make up the higher education institution participate in the drafting of said policy.
Although many universities and professional institutes have been adopting policies in case of sexual harassment, violence and discrimination, Law No. 21,369 establishes a series of requirements that the policies must contain, which will be subject to control by the authority, therefore in more than one case, it will involve modifying existing policies.
For example, in article 5 of the law, the measures that the prevention model must contain are established : diagnosis of activities that are carried out within the respective institution and may imply a risk; set of measures aimed at preventing risks ; awareness and information campaigns on human rights, sexual harassment, violence and gender discrimination; training for officials and academics ; incorporate contents of human rights, sexual harassment, gender violence and discrimination in the curricular plans ; and, include the policies in the induction processes .
Higher education institutions will have until September 15, 2022 to implement the prevention models and sanction models and, once implemented, they are given a period of 90 days -extendable for 30 days- to perfect the models. and staff orientation or training.
From the Superintendence of Higher Education they have been emphatic that they will sanction the houses of studies that do not comply with a comprehensive policy against sexual harassment, violence and discrimination , as established by law, to the point that they will not be able to obtain their accreditation . institutional.
All of the aforementioned translates into an exhaustive process that higher education institutions must carry out. The implementation of a prevention and sanction model in accordance with the requirements established in Law No. 21,369 aims to prevent, sanction and eradicate sexual harassment, violence and gender discrimination, and ensure safe environments.
This is possible to the extent that all the stages involved in this process are met, and understanding that the work does not end once the prevention and sanction models are drawn up, but that implementation, training and constant review and updating are key to to ensure the objectives established by law.
For more information you can contact:
Daniela Hirsch | Compliance Group Director | dhirsch@az.cl
by brojas@az.cl | Mar 6, 2022 | Noticias-en
From “Governance” and with a focus on anti-corruption.
Environmental, Social and Governance (ESG); impact investing and sustainability are terms that companies may consider to be outside the scope of their compliance and ethics program.
However, ESG principles can help companies, fiduciaries and compliance officers fulfill their responsibilities.
Towards a new governance
ESG governance moves away from the traditional understanding of directors’ fiduciary responsibility, based on a hierarchical control model and the proper management and administration of the company.
Governance means starting to move towards a new style of corporate governance that is reflected in greater cooperation between the board and third parties and regulators, covering multiple aspects, including business ethics and transparency; measures to combat bribery, corruption and money laundering; adequate financial management and tax compliance; control of donations to the private and public sector, including political parties; internal audits and controls on regulatory compliance; and respect and safeguarding of the rights and interests of stakeholders, from shareholders and investors to customers and employees.
Importance of anti-corruption programs
Corruption is one of the main ESG issues that investors and financiers analyze when making their decisions, whether for making contributions or even in mergers and acquisitions. In addition to this, there are demands from all over the world and from all sectors for greater transparency, regardless of local regulations.
Therefore, proper corporate governance must consider the implementation of an effective program to manage bribery and corruption risks that may affect the company. These risks not only expose the company to civil, administrative or criminal liability, but also to operational and reputational risks that nowadays acquire an unprecedented importance under the influence of globalization and the use of new technologies.
From the point of view of shareholders and investors
Companies are beginning to see that proper management and planning of corporate governance could have a positive effect on profitability and productivity in the medium and long term.
These competitive advantages will result in companies that are more attractive to shareholders and investors, who are beginning to identify and evaluate the risks of exposure to ESG factors as one of the fundamental aspects in their decision making.
With the evolution and development of this issue, there is an important opportunity for companies that are working on strengthening their anti-corruption programs within the framework of their ESG policies.
Concrete actions that companies can take to incorporate ESG governance factors are as follows:
Analyze the processes the company has in place to identify where there are opportunities for improvement and what factors may be impeding progress.
Create a risk matrix to identify recurring and residual risks.
Design an anti-corruption program based on the risks detected in order to manage them efficiently.
Design a code of ethics and an appropriate anti-corruption policy.
Conduct due diligence on employees, customers, suppliers and business partners, with emphasis on the ESG factors that the company wants to implement.
Enable whistleblower hotlines within the framework of a process that ensures guarantees and protection to the whistleblower.
Train employees and senior staff.
Conduct recurring audits on the different aspects of the program in operation.
by brojas@az.cl | Mar 6, 2022 | Noticias-en
On September 15, Law No. 21.369 was published in the Official Gazette, which regulates sexual harassment, violence and gender discrimination in the field of Higher Education. This responds to the different manifestations that have been carried out in recent years in the different houses of study throughout the country, in which protocols and sanctions were demanded in the face of these cases.
Article 1 of the law clearly establishes the objective of the law: to promote policies aimed at preventing, investigating, sanctioning and eradicating sexual harassment, violence and gender discrimination; to protect and repair the victims; to establish safe environments free of sexual harassment, violence and gender discrimination for all persons attending academic communities of higher education.
The law requires higher education institutions to have a comprehensive policy against sexual harassment, violence and gender discrimination, which must contain a prevention model and a sanction model. In addition, it is required that all levels of the higher education institution participate in the drafting of the policy.
Although many universities and professional institutes have been adopting policies in case of sexual harassment, violence and discrimination, Law No. 21,369 establishes a series of requirements that the policies must contain, which will be subject to control by the authority, so in more than one case, it will imply modifying the existing policies.
For example, Article 5 of the law establishes the measures to be included in the prevention model: diagnosis of activities carried out within the respective institution that may imply a risk; set of measures aimed at preventing risks; awareness and information campaigns on human rights, sexual harassment, violence and gender discrimination; training for staff and academics; incorporation of human rights, sexual harassment, gender violence and discrimination content in curricular plans; and inclusion of the policies in the induction process.
Higher education institutions will have until September 15, 2022 to implement the prevention models and sanction models and, once implemented, they will have 90 days -extendable for 30 days- to improve the models and staff orientation or training.
The Superintendence of Higher Education has been emphatic that it will sanction those schools that do not comply with a comprehensive policy against sexual harassment, violence and discrimination, as established by law, to such an extent that they will not be able to obtain institutional accreditation.
All of the above translates into an exhaustive process to be carried out by higher education institutions. The implementation of a prevention and sanction model in accordance with the requirements established in Law No. 21,369 aims to prevent, sanction and eradicate sexual harassment, gender violence and discrimination, and ensure safe environments.
This is possible to the extent that all the stages involved in this process are fulfilled, and understanding that the work does not end once the prevention and sanction models are drafted, but that the implementation, training and constant review and updating are key to ensure the objectives established by law.
by brojas@az.cl | Mar 6, 2022 | Noticias-en
On May 31, the Labor Department ruled on the enforceability of the obligations established in the company’s Code of Ethics, when it has not been formally incorporated into the Internal Regulations on Order, Hygiene and Safety.
The pronouncement arises from the request presented by a union to refer to two questions:
Whether the company should incorporate the procedures, regulations and provisions of the Code of Ethics that govern the different companies of the holding company, to the Internal Regulations of order, hygiene and safety of the mining company.
Whether or not the provisions of the aforementioned Code of Ethics constitute a mandatory regulation for the employees of the subsidiary company, whose non-compliance must be sanctioned by the employer, even though they have not been incorporated into the aforementioned Internal Rules of Order, Hygiene and Safety.
In order to respond to the requirement, the Labor Directorate analyzed the provisions of article 153, paragraph 1 of the Labor Code, as well as numbers 5, 10 and 11 of article 154 of the same legal body, in addition to the recent jurisprudence of the agency. To this effect, the DT recalls that the legislator requires companies that employ 10 or more permanent workers to draw up an Internal Regulation of Order, Hygiene and Safety that contains the obligations and prohibitions to which workers must be subject in relation to their work, stay and life in the premises of the respective company or establishment.
Thus, after analyzing the respective documents submitted, the institution pointed out that the Code of Ethics existing in the parent company contains obligations and prohibitions, as well as the procedure for investigations and the application of sanctions, so that this body does not constitute a regulation to which the workers of the subsidiary companies must be subject until it has been incorporated into the Internal Rules of Order, Hygiene and Safety of the company in question and made known to the workers in the manner provided by law.
Thus, the precedent is set that it is not enough for the parent company to have a Code of Ethics, nor is it enough to make the Code of Ethics known to the workers; it is essential to incorporate it into the Internal Regulations of each company that makes up the economic group so that it is enforceable and applicable to all workers.
Once again, the importance of approaching Compliance with a transversal view that includes the analysis from the perspective of labor law is evident. Otherwise, there is a risk of creating a compliance model that, at the end of the day, cannot be imposed as mandatory for workers, for not having complied with the formalities required by law.
The AZ Compliance team has a cross-cutting nature, incorporating specialists from the Labor, Antitrust, Criminal, Corporate, Personal Data Protection and Consumer Law groups, among others, which allows an all-encompassing view for the implementation of a Compliance Model suitable for the needs of each company.
by brojas@az.cl | Mar 6, 2022 | Noticias-en
After 5 years of processing, on April 13 of this year, Law No. 21,314 was published in the Official Gazette, which establishes new transparency requirements and reinforces the responsibilities of market agents, regulates pension counseling and other matters.
The Law amends the following legal bodies:
Law No. 18,045 on Securities Market.
Law No. 18,046 on Corporations.
Decree Law No. 3,500 of the Ministry of Labor and Social Security of 1980, which establishes a new pension system.
Decree with Force of Law No. 251, of the Ministry of Finance, on Insurance Companies, Corporations and Stock Exchanges.
Law No. 19,913, which creates the Financial Analysis Unit and modifies various provisions on money laundering and money laundering.
Decree Law No. 3,538 of 1980, which creates the Financial Market Commission.
Commercial Code.
Law No. 18,010, which establishes rules for credit operations and other money obligations.
One of the amendments that generated controversy is the one that established that individuals and companies that make massive recommendations for pension investments, such as changes in AFP funds, must be subject to joint regulation by the Superintendence of Pensions and the CMF, which caused unregulated companies such as Felices y Forrados to announce that they will cease to provide services.
The Law also subjects the provision of financial investment advisory services to the supervision of the CMF, incorporating, among other requirements, that those who habitually provide such services must first register with the CMF.
One of the most relevant amendments in these two areas is the increase in penalties for offenses and the broadening of the agents that may be punished.
The Law also introduces amendments relating to insurance associated with money lending obligations, a digital insurance consultation system administered by the CMF, and default interest on credit operations.
Other amendments to the Law in the area of criminal sanctions are as follows:
Price manipulation: Article 52 of the current Law No. 18,045 is amended, establishing that any type of action, and not only transactions, aimed at stabilizing, fixing or artificially varying the prices of publicly offered securities will be a crime.
External auditing companies: The current article 59, letter d) is amended, stating that the partners of external auditing companies that maliciously issue an opinion or provide false information about the company subject to review, or that alter, hide or destroy information of an audited entity, thus distorting its real financial situation, will be sanctioned.
Regarding directors and senior executives of a company, stock exchange or securities intermediary, letter h) is added to the current article 59 establishing that the delivery of maliciously false information or statements to the board of directors, management, external auditors or risk classifiers is punishable.
Penalties are increased for those who disseminate false or biased information in the securities market and for companies and individuals who do not provide correct information to the CMF.
A new figure, called anonymous whistleblower, is also created to encourage and protect whistleblowing in relation to violations of the CMF’s competition laws. In the event that the complaint results in fines, the whistleblower will receive a percentage of the fine. In this figure, the whistleblower must not be involved in the facts neither as a participant nor as a victim.
Finally, the Law also modifies rules on disclosure of essential information and prohibition of transactions on securities by persons related to the respective issuer in certain circumstances, and in matters of corporations, rules on operations with related parties, independent directors and policies for the election of directors in subsidiaries of parent companies supervised by the CMF.
by brojas@az.cl | Mar 6, 2022 | Noticias-en
In Resolution No. SCVS-INC-DNCDN-2020-0013 of September 1, 2020, the Superintendence of Companies, Securities and Insurance (hereinafter, “SCVS”) issued the Ecuadorian Norms for Good Corporate Governance (hereinafter, the “Norms”).
The resolution defines Corporate Governance as “the control and management system of commercial companies”. To this end, it establishes a series of “principles” and “guidelines” that companies may incorporate into their processes.
The principles are as follows:
Equality: refers to fair and equitable treatment of shareholders for an honest and responsible conduct of the company;
Transparency: it is the obligation to inform, to be accountable for its operations;
Responsibility: the sustainability of the company must be ensured; and,
Voluntariness: the guidelines and principles are voluntary for companies to apply.
There are seven guidelines that should be considered for the correct management of corporate governance:
1) Shareholders’ rights and equitable treatment.
The way the company is governed should be practical and shareholders should allow a director to operate the company. Ideally, it should be a person who knows the business.
However, this does not mean not recognizing that shareholders maintain their rights to (i) make decisions at the general shareholders’ meeting; (ii) receive information; and, (iii) participate in the company’s profits.
On the other hand, the Norms indicate that shareholders of the same class must be treated equally. In any case, agreements between shareholders establishing conditions for the negotiation of shares and others are allowed, but these shall not be enforceable against third parties and may not be detrimental to minority shareholders.
2) The General Shareholders’ Meeting or Shareholders’ Meeting
The Norms seek to reestablish confidence in the general meeting or shareholders’ meeting as the supreme body of the company. The idea is that each meeting should act with formality, transparency and efficiency, since it is a basic decision-making and control body of the companies.
In other words, the general meeting or assembly must control the running of the company, monitoring the delegation made to the administrator by means of a permanent supervision that guarantees the correct functioning of the company.
3) The Board of Directors
The Board of Directors is the collegiate body in charge of being the link between the shareholders, the administrator and third parties. The purpose of the Board of Directors is to protect the company’s business and to be the body in charge of ensuring that the governance system is always focused on protecting the company’s interests.
Regardless of whether the Board of Directors is elected by the shareholders, it must always look after the best interests of the company.
4) Family Governance
Family Governance refers to preserving the total or majority control exercised by a given family in a corporate structure. The objective is to adapt the estate planning in order to avoid family conflicts or, in case they arise, to ensure that adequate dispute resolution mechanisms are in place.
To this end, the Norms establish basic guidelines for establishing and managing a Family Assembly or a Family Council. One of the most important recommendations is to create a “Family Protocol” containing a series of rules that seek to guarantee relationships, unity, harmony and, above all, the continuity of the family in the business.
5) Control Architecture
This refers to risk management, internal control systems, information and communication, and monitoring of the companies’ operational activities.
Basically, the control architecture allows the company to have a structure, policies and procedures that are known and complied with by all the people who are part of it. For example, it is recommended to establish an Audit Committee to ensure transparency.
6) Transparency and financial and non-financial reporting
Transparency is the cornerstone of the company’s oversight. The Standards recommend creating a disclosure policy that includes the information that may be disclosed, the manner in which it will be shared, the recipients of the information and the procedures to ensure that the information to be disclosed is protected.
In addition, it is recommended that a system be established to ensure that potential conflicts of interest are resolved.
Finally, companies that adhere to the Corporate Governance Standards must submit to shareholders an Annual Corporate Governance Report together with the management report and the financial statements.
The purpose of this report is to explain the degree of compliance with the Corporate Governance guidelines in order to determine its success.
7) Measures to mitigate corruption
As mentioned in the previous section, it is the obligation of management to prepare and approve an annual Corporate Governance report. The purpose of this document is to adopt new corporate skills to identify improper practices and apply the respective controls to combat them or, if they already exist, to adopt measures to mitigate or remedy the eventual damages that may derive from acts of corruption.
In addition to these limitations, the Standards recommend that companies adopt corporate compliance programs and anti-corruption practices. This program should essentially include the identification of illicit activities, the implementation of a code of ethics or conduct aimed at members and employees regardless of their position, and protocols for action in the event of a possible corruption scenario.
In general, the entity in charge of this guideline and its observance should be the Risk Management Committee or whoever takes its place.
