by Juan Manuel González | Apr 22, 2024 | Noticias-en, Opinions
Law 27,739 sanctioned by the Congress of the Argentine Republic has come into force, which introduces important modifications in the current legislation on the prevention and repression of Money Laundering (ML), Financing of Terrorism (FT) and Financing of the Proliferation of Weapons. Mass Destruction (FP).
These reforms, motivated by Argentina’s Fourth Mutual Evaluation Round, are aligned with international standards established by the Financial Action Task Force (FATF) and are based on the risks identified in the corresponding national evaluations.
Some of the main points on which the modification deals are:
1.- Risk-Based Approach : The new legislation also establishes the application of a Risk-Based Approach for all regulations related to Regulated Entities. This means that preventive and control measures will be adapted according to the level of risk of each entity or activity, allowing greater effectiveness in preventing money laundering.
2.- Expansion of the list of Obligated Subjects . New actors have been included such as issuers, operators and collection and payment service providers, non-financial credit providers and virtual asset service providers. In addition, a section is added on non-profit organizations, which, although they are no longer obliged to the FIU, must undergo a risk analysis to avoid the financing of terrorism. This implies establishing proportional measures to mitigate the identified risks.
Also highlighted are the categories of lawyers, who will be obligated subjects when they operate on behalf and by order of a third party in: a- purchase and sale of real estate; b- administration of goods and assets; c- management of bank, savings and securities accounts, d- organization of contributions for legal entities; e- creation, management and commercial transactions of legal entities. Public accountants and public notaries remain on the list of previously established subjects.
3.- Registration of final beneficiaries . The reform creates the Public Registry of Final Beneficiaries under the jurisdiction of the AFIP. This centralized registry will collect complete and up-to-date information on the country’s beneficial owners, providing a crucial tool to combat financial opacity and improve transparency in economic activities. In addition, the regulations introduce key definitions, such as “final beneficiary,” and expand the criminal types related to money laundering, covering environmental crimes and financing of weapons of mass destruction. Different levels of access to information are also established for public and private entities, eliminating fiscal secrecy in relation to registry data. These measures, together with the inclusion of independent professionals in the obligation to report suspicious transactions, strengthen the legal framework and promote financial integrity in Argentina.
4.- Registry of Virtual Asset Service Providers : A registry of Virtual Asset Service Providers (PSAV) is created by the National Securities Commission (CNV), with clear definitions on virtual assets and suspicious operations.
5.- New Crimes : Argentina has integrated the crime of Financing the Proliferation of Weapons of Mass Destruction into its Penal Code. This measure is added to the regulations of the Financial Information Unit and obliges Obligated Subjects to include it in their prevention programs. In addition, the scope of article 306 has been expanded, including “property or other assets” in the crime of financing terrorism.
6.- Modification of the crime of money laundering . Article 303 of the Penal Code has undergone significant changes, with the threshold of punishment being raised to 150 minimum vital and mobile salaries (no longer a fixed amount of $300,000), also incorporating the verb “acquire” as a typical action. In addition, the prison sentence in the attenuated criminal type has been replaced by a financial fine. On the other hand, article 41 quinquies has been modified to include terrorism crimes in accordance with international conventions ratified by the country. These modifications impact the measurement of punishment, integrating crimes such as financing the proliferation of weapons of mass destruction. Despite these changes, fortunately article 305 maintains its effectiveness, allowing the definitive confiscation of assets in cases of money laundering, even in situations of extinction due to prescription.
7.- Updated Sanctions : The list of sanctions to be applied by the FIU to Obligated Subjects in case of regulatory non-compliance is updated, along with adjustments to the level of penalties. The legislation now reflects recent provisions of the FIU, allowing corrective actions prior to the opening of administrative proceedings for detected irregularities. In addition, the amounts of possible fines have been increased and the option of disqualifying the Compliance Officer as a sanction has been introduced.
8.- Expansion of Powers of the FIU : Its powers are expanded to strengthen the fight against ML/TF. Now, the subjects reached will not be able to oppose banking or professional secrecy in certain cases. A risk-based internal control system will be implemented and a registry of Independent External Reviewers will be established. In addition, key information will be provided through guides and seminars to improve the detection and reporting of suspicious operations. The supervision procedures may conclude in corrective actions or administrative summaries depending on the severity of the deficiencies detected.
9.- Parliamentary Control: A new control is implemented through the Bicameral Commission for Oversight and Intelligence Activities Agencies, establishing the obligation for the FIU to appear before this commission, providing reports, opinions and advice as required.
By Diego García Austt, lawyer specializing in Economic Crimes | Compliance Latam collaborator.
by Juan Manuel González | Apr 18, 2024 | Noticias-en, Opinions
In Peru’s vibrant tourism scene, where cultural and natural wealth attracts visitors from all over the world, the hotel industry plays a crucial role. However, behind the warmth and hospitality it offers its guests, there is a vital but often underestimated aspect: compliance, understood as the culture of integrity that must govern organizations.
Compliance in the tourism sector is not only a matter of following rules and regulations imposed by the authorities, but, as we said, it is part of an organizational culture that allows building and maintaining customer trust, safeguarding the reputation of companies and, ultimately, foster an environment of fair and sustainable competition.
One of the main challenges facing the Peruvian hotel industry in terms of compliance is the need to quickly adapt to a constantly changing regulatory environment. From tax regulations to health and safety requirements, tourism-related businesses must be aware of a wide range of regulations to operate effectively and ethically.
One of these challenges is presented in its consideration as a subject obliged to have a money laundering and terrorist financing prevention system (splaft), a system that is supervised by the Financial Intelligence Unit (UIF) [ 1] .
To face this scenario, transparency and integrity are essential. Robust compliance programs must be established that address areas such as the prevention of corruption, money laundering and respect for labor rights. Additionally, ongoing staff training is essential to ensure that all employees understand and comply with established policies and procedures.
Importantly, regulatory compliance goes beyond simply following the laws. It is about promoting an organizational culture rooted in ethical principles and solid values. This involves promoting corporate responsibility and commitment to environmental and social sustainability. Companies that take a comprehensive approach to compliance not only minimize the risk of legal sanctions, but also create a competitive differentiator that resonates with increasingly aware consumers.
However, implementing and maintaining a strong compliance program is no easy task. It requires investment of time, resources and, most importantly, genuine commitment from senior management. It is essential that industry leaders recognize the strategic importance of compliance and integrate it into corporate decision making.
Additionally, given the impact of technology on the hospitality industry, companies must be attentive to the cybersecurity and data protection implications. The collection and storage of personal guest information carries great responsibility, and it is crucial that appropriate measures are implemented to protect data privacy and security.
In view of the importance of compliance in the Peruvian tourism industry, it is essential that business leaders understand its strategic value and the need to implement it in their organizations. Only through active commitment to ethical principles and legal standards will tourism companies be able to strengthen their reputation, earn the trust of their clients and remain competitive in an increasingly demanding market.
Therefore, we invite all managers in the hospitality sector to seriously consider implementing compliance in their companies as a long-term investment in the integrity and sustainability of their businesses. Adopting a culture of ethical compliance will benefit not only the company’s internal relations but also its corporate image, contributing to strengthening the growth of the tourism sector in Peru.
[1] Institution dependent on the Super Intendency of Banking and Insurance (SBS).
For more information contact:
Mario Pinatte | CPB Partner | mpinatte@cpb-abogados.com.pe
by Juan Manuel González | Apr 8, 2024 | Noticias-en
On March 26, the Cybersecurity Framework Law was promulgated , an initiative that creates a National Cybersecurity Agency (ANCI) , which will have the purpose of regulating, supervising and sanctioning all public and private organizations that provide essential services and that are subject to to this regulation.
For the purposes of this law, essential services are those that are fundamental for the functioning of the country and the quality of life of society. The following sectors are included within this regulation:
- Electrical generation, transmission or distribution.
- Transportation, storage or distribution of fuels.
- Supply of drinking water or sanitation.
- Telecommunications and digital infrastructure.
- Digital services and information technology managed by third parties.
- Land, air, rail or sea transportation.
- Banks, financial services and means of payment.
- Administration of social security benefits.
- Postal and courier services.
- Institutional provision of health services.
- Production and/or research of pharmaceutical products.
This standard establishes a minimum compliance standard , requiring companies to adopt better tools to protect the rights of people in cyberspace , as well as to avoid the commission of crimes related to identity theft and other computer crimes, such as access illegal activity, sabotage, interception of services and other attacks that compromise security in the digital environment.
The supervisory work of the ANCI also implies sanctioning powers, being able to impose fines that could reach 40,000 UTM , that is, close to $2.6 billion pesos .
This Agency will dictate norms, protocols and minimum standards that must be considered by the subjects bound by this law in order to prevent, report and resolve cybersecurity incidents and attacks through computer means.
The promulgation of this new law turns out to be an important step in the construction of comprehensive national legislation on cybersecurity, and is inserted within a regulatory framework that, in general terms, seeks to guide public and private organizations to improve standards. of security in an increasingly globalized and connected world .
For more information, you can contact our Compliance team :
Francisca Franzani | Compliance group director | ffranzani@az.cl
Caterina Ravera | Senior Associate | cravera@az.cl
Jaime Viveros | Associate | jviveros@az.cl
by Juan Manuel González | Apr 1, 2024 | Noticias-en, Opinions
As women in the Compliance field, we understand that gender equality is, in addition to an essential right, the fundamental basis for building a prosperous and equitable world. This approach is closely aligned with Sustainable Development Goal No. 5 (“SDG 5”) of the United Nations Global Compact, which seeks to promote gender equality and the empowerment of all women and girls in all aspects of life. .
Despite the progress made in recent decades, women and girls around the world still face significant barriers to enjoying this equality, especially in key areas such as education, healthcare, employment and participation in decision-making. political and economic decisions. The reality that comes from being exposed reflects a challenge that requires continuous commitment from all sectors of society.
In the corporate context, companies have a crucial role to play in promoting gender equality. It is not only about adopting internal policies and procedures to guarantee equal rights and employment opportunities, but also about investing in economic empowerment programs that benefit women and girls in the communities where they operate, aiming to build more inclusive work environments, fair and productive.
In accordance with SDG 5, some of the practices that companies can implement include, but are not limited to:
- Create an Equality Plan with specific commitments, measures and objectives to promote and achieve gender equality within the organization.
- Monitor and ensure that all company policies include a gender perspective and that the business culture promotes equality and integration.
- Implement procedures aimed at promoting an increase in the number of women at all levels and positions within the organization, especially in positions of responsibility and management.
- Develop a training plan on gender, which includes topics such as human rights and non-discrimination, for all departments and areas of the organization.
These actions not only meet the objectives of SDG 5, but also contribute to building a more equitable and sustainable environment for present and future generations. Additionally, they foster a more productive and enriching work environment for all employees, regardless of gender.Principle of the form.
By Lucía Rodríguez Wikman, Lawyer | CIEMSA
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