This article first appeared in Revista Capital on December 26, 2018.
The law penalizing bribery between private parties has already entered into force. The law was a long process in congress, but today, fortunately, it is already a reality.
All companies, of all sizes and types, will be able to jump on the bandwagon to fight corruption, assuming the law as an invitation to do things right and to comply with the regulations with will and conviction for the benefit of the business, the markets, and the citizens.
The law is a great step forward. But it is of no use if there is no cultural change and awareness within companies. The private world must assume that it can be a victim of corruption. And not to look at bad practices as something that others do, or to take as normal what “everyone else does”. It is also essential not to close our eyes to the possibility that the “corrupt” could be inside the company. The evidence confirms that anything is possible. Therefore, before the law comes down on them, organizations must train their employees; encourage the use of whistle-blowing channels, which are rarely used today for fear of reprisals; strengthen the role of the compliance officer and ensure the correct implementation of supplier policies. In short, consider all the necessary controls to keep corruption at bay.
As of November 20, the date on which the law on corruption between private parties came into force, both individuals (executives or workers in general) and companies will be more exposed. The important thing to understand is that the crime may be committed if it is proven that there was an economic benefit – or of another nature by the person offering it – without the need for the business to be carried out. This means that companies will have greater requirements, taking a real step towards an anti-corruption culture.
For bribery to exist, the crime must involve an employee and a company that benefits directly or indirectly. For example, if an external company providing services to another (or an employee of the latter) bribes the worker to be awarded a contract, there would be punishment. In addition, if it is proven that the company to which that employee belongs is also favored (by the extra income in money or gifts and invitations) it may receive a penalty. This is provided that it is verified that the company did nothing to prevent irregularities of this nature.
The new regulation is an invitation to see compliance as a corporate ally, which allows to measure the culture of the company, according to its laws, and to establish the appropriate controls to stop in time any sign of corruption. Businessmen must lose their fear of reporting conduct that offends them and that, on the other hand, a favorable environment is generated so that these reports are properly assessed, beyond thinking of not reporting for hurting sensitivities.
When talking about corruption between private parties, do not imagine the executive in a suit and tie bribing another with a briefcase full of bills. That is not the point. The new law establishes crimes that today seem to us to be everyday customs, such as avoiding gifts of high amounts, invitations to seminars that last a couple of hours, and trips that last for days, we are talking about “gifts” that go far beyond good customs. It is not that from now on such attentions are forbidden, but the “gesture” must be in line with ethics. If a wine is given as a gift, it should be moderately priced and not involve a major commitment.
Although now all eyes will be on the private sector, as to how it behaves in the face of this new law, we will not fail to monitor what happens in state institutions, which should always set an example in terms of probity and transparency.
By Susana Sierra