by Juan Manuel González | Jan 16, 2024 | Noticias-en
Regarding a conversation related to the new Economic Crimes Law, we had a question about whether there is expressly a legal obligation that orders me to submit to the internal regulations of third parties related to my activity. The above, considering that, if effective, this implies that I must read, know and apply all the policies and manuals of my clients and, eventually, other third parties.
In that sense, and at least as far as it concerns a contractual relationship with clients or counterparties on an equal footing in negotiation, it is reasonable to maintain that if I sign a contract with a third party, in which my complete opposition to the commission is expressly mentioned of crimes within my organization, and I have a living, controlled and regularly updated prevention model, it should not be an imperative to have to submit to the self-regulation of my related parties.
In addition to being somewhat extreme, requiring all companies to comply with each of the internal obligations of their related parties, which commonly also depend on the needs, logic and legal techniques of each original regulation, it is tremendously expensive—in terms of time and efficiency—think that each company has to submit, purely and simply, to each and every one of the policies and manuals that make up the Crime Prevention Model of related third parties, simultaneously avoiding its potential application and also ensuring to be attentive to the possible modifications of each of such models (in foreign, and sometimes even foreign, computer servers), which is what is usually asked to accept, ex ante, in such types of regulations.
Although the “obligation” referred to above is inserted in the context of the elements that a crime prevention model must contain, in accordance with the provisions of Article 3 No. 3 of Law No. 20,393, in practice it is observed that These obligations, prohibitions and sanctions mainly deal with the establishment of specific prohibitions relating to certain topics (eg, making facilitation payments, making decisions through undeclared conflicts of interest, carrying out illicit activities in the context of the execution of the contract) and compliance with obligations to report any suspicious situation through established reporting channels, among other points. But the problem, also practical, is that the way of approaching how these obligations, prohibitions and sanctions are implemented for those who contract with another has generally consisted of the supposed duty of having to accept, as noted, purely and simply , the entirety of a certain Crime Prevention Model that is imposed on the other, as a condition of the conclusion of the respective contract.
Consequently, and reflecting on the actual implementation of the new Economic Crimes Law, it is to a certain extent unfeasible, and, at the same time, excessive, to think that all companies must sign the internal regulations of their related third parties and accept them in a closed package. Without prejudice to the foregoing, the failure to incorporate clauses relating to compliance with the crime prevention model could entail risks for the provider when accrediting compliance with its management and supervision duties, especially when what is in question, eventually, is the liability of the legal entity for criminal acts committed in the context of the supplier/client contractual relationship.
From a practical perspective, it should be noted that a serious and relevant situation that involves the commission of an illegal act will require addressing potential criminal contingencies as a first priority, which will allow for early mitigation of possible contractual risks related to non-compliance with these clauses.
Thus, today it is essential to review the contracts with my related third parties and not rest on the fact that there is an identical standard clause in all of these and that it must be accepted automatically or sine qua non to conclude the contract. We think that essential base points can be established, with common objectives, with a view to safeguarding the legal assets protected in Law No. 20,393, such as the obligations, prohibitions and sanctions already mentioned, and contractually refine the relevant points for both parties, but this It does not mean that I must necessarily submit to the internal regulation of my suppliers and clients.
By the way, as part of such essential bases, the controls through the contracts and monitoring of the correct fulfillment of the services agreed in this will be an important armor in the eventual case that said third party commits a crime in the context of the functions that are the subject of my contract.
* Francisca Franzani is director of the Compliance group at Albagli Zaliasnik and Andrés Illanes is manager of Corporate Affairs at Bodegas San Francisco.
Source: El Mercurio
For more information you can contact :
Francisca Franzani | Compliance Group Director | ffranzani@az.cl
by Juan Manuel González | Nov 20, 2023 | Noticias-en
The initiative seeks to avoid duplication in the payment of taxes and also prevent tax evasion of income and wealth taxes.
On November 16, 2023, the National Congress approved the agreement between Chile and the United States by which the “Agreement between the Government of the Republic of Chile and the Government of the United States of America to Avoid Double Taxation and to Prevent Tax Evasion in Relation to Income and Property Taxes and its Protocol.”
The entry into force of the agreement will occur when it is ratified by the President of the Republic of Chile and the exchange of notes between Chile and the United States takes place.
Thus, the provisions of the agreement will come into force in accordance with the following detail:
Withholding taxes at source, with respect to amounts paid or accrued, will take effect on or after the first day of the month following the entry into force of the Agreement.
Other taxes will take effect starting January 1 of the year following the entry into force of the Agreement.
Regarding the rules for exchanging information, they will govern from the entry into force of the Agreement, without making distinction to the tax period to which the information refers.
This is a fact that will undoubtedly favor commercial exchange between both countries. Among its main tax implications we can find the following:
Capital gains: The rate is reduced from the current 35% to 16%, provided that the transferor has not owned, within the 12 months preceding the transfer, more than 50% of the capital of the company with residence in Chile.
Interests: The maximum rates currently in force are limited (Chile 35%, United States 30%). The maximum rate will be 10% as a general rule and may be as high as 4%. However, during the first two years of validity of the Agreement it will be a rate of 15%.
Dividends: A maximum rate of 5% is established if the beneficiary of the dividends is a company that owns at least 10% of the voting shares of the company that pays the dividends and 15% in other cases. In the case of Chile, given our semi-integrated system, the maximum rate will not apply to the extent that the First Category Tax can be used entirely as a credit and the Additional Tax rate does not exceed 35%.
Use of credits: The corporate tax paid or withheld in the United States may be used in Chile as a credit.
Information exchange: A mechanism is contemplated for information requirements and exchanges.
For more information you can contact :
Francisca Franzani | Compliance Group Director | ffranzani@az.cl
by Juan Manuel González | Nov 6, 2023 | Noticias-en
We invite you to read the publication of El Mercurio, a space where our associate Constanza Pasarin referred to the sanctions after misleading advertising on digital platforms.
From large companies such as Codelco to public figures such as journalist Mauricio Bustamante, this year they have been the subject of false publications on different digital platforms, whether social networks, search engines, among others.
This is what is known as cyber hoaxes, where cybercriminals use images of people or organizations to spread false content, in order to attract web users to scam them or extract their personal data.
The problem is that this practice is increasingly common, and not only are users affected through misleading or malicious advertising, but also those who turn out to be victims of the use of their image.
In this regard, Constanza Pasarin, lawyer of the Compliance/Tech Group of Albagli Zaliasnik, points out that in Chile the regulation of advertising, regardless of the medium through which it is disseminated, is established mainly in Law 19,496 or Consumer Law, which establishes standards for the protection of consumer rights.
However, it warns that in the context of social networks and platforms where misleading advertising is spread, the prosecution of those behind these practices continues to be a challenge. “This is due, in part, to the intermediary role these platforms play, as well as the geographic location of the product or service provider. If you are abroad, the consumer protection law would not be applicable,” says the lawyer, who is also a member of the legal, cybersecurity, artificial intelligence & women and technology table at ACTI.
Despite the above, it says that if you want to start a legal process against a company in Chile, you can always resort to the National Consumer Service (Sernac), which is the authority in charge of supervising and sanctioning those who promote misleading advertising. . The fines and compensation to consumers will depend on the circumstances of each case, but the regulations establish that they could reach up to 1,500 UTM or even 2,250 UTM (about $144 million, considering the value of the UTM of November of this year) in situations that affect the health, safety or environment of the population.
In addition, it indicates that the Council for Self-Regulation and Advertising Ethics (Conar), made up of private companies and institutions representing the advertising sector in the country, provides guidelines related to this issue, as well as the Electronic Commerce Regulation, which imposes obligations related to the advertising of products marketed through electronic commerce platforms and grants rights to consumers. Of course, they have no legal powers.
Digital stance
On the digital platforms side, Google maintains that they already have solid and clear advertising policies that they harshly apply to protect the ecosystem from fraud situations, reduce hate or misinformation, and stop inappropriate experiences for children. “We develop and enforce policies that help keep people and our partners safe when using our advertising tools,” they say.
And they add: “Our dedication to this cause is reflected in the actions we have taken. In 2022, we added or updated 29 policies for advertisers and publishers, expanded our financial services verification program, and strengthened our election-related ad policies, among others. This allowed us to remove more than 5.2 billion ads, restrict more than 4.3 billion ads, and suspend more than 6.7 million accounts of advertisers who violated our policies. “These efforts represent a significant increase over the previous year.”
Along these lines, Google indicates that it combines human reviews with automated systems based on artificial intelligence and machine learning, which helps them identify violations around the world and take quick and effective measures. “We understand that challenges continue to evolve in the digital world, and that is why we continue to invest in our policies and enforcement. This includes expanding our financial services certification program to protect people from scammers and prevent fraud. Additionally, we are committed to confronting sophisticated threats from malicious actors who attempt to evade detection.”
In the case of Facebook, Constanza Pasarin comments, for example, that the social network recently implemented new measures to combat misleading advertising on its platform. Under this policy, she explains, the company will examine negative reviews submitted by users about businesses that advertise on the platform, with the aim of preventing abuses against consumers.
The lawyer adds that, within this new policy, Facebook will allow users to file complaints related to companies that have experienced problems, either due to dissatisfaction with the quality of the promised products or offers that were not fulfilled as announced in the social network. What’s more, if a significant number of complaints are detected directed at the same company, the latter will be prohibited from publishing new ads on the platform. However, companies will be guaranteed the right to reply and the possibility of responding to complaints.
“For this reason, it is highly advisable to verify the reputation of the company that offers a product or service before making a purchase through a platform or social network, verify if the company is located abroad and examine reviews to avoid being left unprotected” , maintains Constanza Pasarin.
For more information you can contact :
Francisca Franzani | Compliance Group Director | ffranzani@az.cl
by Juan Manuel González | Oct 23, 2023 | Noticias-en
The case that we discuss on this occasion is related to a minimum services pact agreed between a company and its union organizations.
Indeed, based on the collective autonomy of the parties, they autonomously decided to enter into a minimum services agreement whose purpose is to maintain certain types of operations in the event of a possible stoppage due to a strike.
In the specific situation to which we allude, one of the unions contemplated in its statutes that its board of directors was made up of four leaders, however, at the time of reaching the minimum services agreement, only two of these remained in force. For this reason, the respective instrument was celebrated, with only the leaders who had the status of active workers on that date signing it.
Once the agreement was reached, the respective agreement was deposited with the Labor Inspection, which issued a resolution rejecting said management and not validating the document signed between the parties, because, in the opinion of the labor administrative authority, it did not satisfy its criteria and standards.
It is against said resolution of the Labor Inspection that the company filed a lawsuit in court, questioning the actions of said department for assuming powers that it does not have.
Therefore, the underlying discussion of this case is, What is the degree of interference that the Labor Directorate can have with respect to a minimum services agreement that has been achieved autonomously and freely between the employer and its union organizations?
The ruling expresses clearly and emphatically (case Rit I-93-2023 of the 1st Labor Court of Santiago) that “Article 360 of the Labor Code, regarding the agreement that union organizations can reach in relation to the matter, has contemplated that the only intervention of the Labor Directorate in the process is to be the depositary of the agreement. Unlike what is provided for in article 223 of the Labor Code, it has not provided powers with respect to this body to make observations to the instrument in the sub-lite case.”
It continues, “It is up to the state bodies to be subject, without exception and in all their actions, to the constitutional norm of article 7 and no other powers can be attributed than those contemplated in the fundamental text and the laws that have been issued in accordance to her. The defendant does not justify sufficiently under the normative assumption that active conduct is justified regarding the questioning of the legitimacy of the instrument that has been delivered to her for collection.”
This is a pronouncement of utmost importance since it clearly delimits the degree of intervention that the Labor Directorate can have regarding a minimum services agreement concluded between the employer and its unions, and restricts any possibility of objecting to it, repairing it or refusing to have it. by deposited, since its role is not predominant when there is a direct agreement between the parties.
For more information you can contact :
Francisca Franzani | Compliance Group Director | ffranzani@az.cl
by Juan Manuel González | Sep 29, 2023 | Noticias-en
In recent times, conversations have become widespread around the so-called “Economic Crimes Law” that creates a series of new crimes and establishes charges for the company and management positions if any of the aforementioned crimes are proven. reform incorporates.
In this context, one of the challenges for business organizations is related to implementing internal investigation processes or background collection, which allow them, on the one hand, to act diligently in the face of crime prevention models, but on the other, to give due protection of the fundamental rights of workers. The above, having as an additional element the role carried out by the Labor Directorate (DT) to safeguard, promote and protect the rights of workers.
To this end, many companies have decided to formalize, regulate and establish protocols in case of infractions or illegal acts that occur within the organization. This implies modeling the administration and management powers of the employer and generating certainties regarding the protocols that must be carried out.
In this context, the case that we discuss on this occasion is related to the reprimand given to a worker who was reported for situations of alleged workplace harassment, which is why an investigation process was carried out, in which later, also the DT intervened.
On this occasion, the company decided, as part of a mediation process, to adopt a reprimand against the reported worker, who judicially challenged the decision.
Knowing the respective case (Cause Rit O-94-2020 of the 2nd Labor Court of Santiago), the judge carried out an interesting analysis regarding the importance of an investigation process implemented in a company, and the due compliance that must be carried out. get this one.
In fact, on this matter it indicated that “as was proven (…), there is no doubt that the warning issued to the plaintiff, which motivated this trial, was issued outside the procedure regulated by the defendant itself to investigate and sanction a complaint contained in its internal regulations.”
It continues “The plaintiff’s complaint is that, by not complying with its own regulations, it would be prevented from applying the sanction, which arose as stated as a result of a complaint from one of the unions and the investigation carried out by the Labor Inspection and the findings of violation of fundamental rights.”
In this sense, the judge determines that “The sanction is presented as an act of force, which directly affects the worker, making him responsible for an impact on other workers, negatively defining his position within the company. For this reason, recognizing the subordinate structure of the employment relationship and the power of the employer legally validated and normalized by the employment contract, we must understand that the disciplinary power expresses an act of private self-protection of one over another, which in the context of submission and dependence is formulated as an act of violence due to the effects it produces.”
“It is essential to answer whether this reprimand is addressed within a process that grants guarantees to the plaintiff who was able to exercise an adequate defense, guaranteed at the constitutional level through paragraph 3 of article 19 of the Fundamental Charter, which recognizes the universal prerogative of equal protection of the law, the right to legal defense, the right to be judged by the natural judge, and the right to a fair and rational procedure, a guarantee that, although it is contemplated for this court, the employer is expected to respect when exercising its power. disciplinary action and the extreme of a legal defense could not be exercised by the worker, due to the nature of the administrative process and as it is clear that this was carried out by the Iquique Labor Directorate, which in the opinion of this sentencing judge is sufficient to accept the demand,” the court concluded.
This is an interesting statement that establishes the scope of the research processes within companies, the importance of their due compliance if regulated and implemented, being a relevant input for those organizations that are working on their Models. of Compliance and Crime Prevention.
For more information you can contact :
Francisca Franzani | Compliance Group Director | ffranzani@az.cl