After the bill that systematizes economic crimes and increases the applicable sanctions was passed into law, there are several questions from companies about how this will affect them.
For this reason, BH Compliance and Dal Pozzo & Medina Abogados held the webinar “New Law on Economic Crimes: Implications for Companies” to explain the details of this new regulation and the modifications to the Law on Criminal Liability of Legal Entities.
The presentation was started by Gonzalo Medina, lawyer at Dal Pozzo & Medina, and one of the advisors to the project, who addressed the general aspects of the new law. He highlighted the establishment of a new catalog of economic crimes, which encompasses over 200 offenses. These offenses, under certain criteria, will be applicable to individuals and always result in criminal liability for companies. He also discussed the structure of four new categories of crimes, special aggravating and mitigating factors for individuals in this area, as well as the penalties that would be imposed, including the introduction of “day-fines.” Furthermore, he mentioned the introduction of profit confiscation to recover illicit gains and referred to the modification of existing offenses such as private corruption, incompatible negotiation, or insider trading, as well as the inclusion of new crimes such as environmental crimes, violation of trade secrets, or abusive corporate agreements.
Next, Francisco Bilbao, Legal and Compliance Director at BH Compliance, focused on the modifications to the Law on Criminal Liability of Legal Entities, stating that “there is a paradigm shift in how we understand compliance.” From a more checklist or formalistic culture, there is a transition to a real culture of crime prevention, where Crime Prevention Models (CPM) take center stage. He indicated that the scope of application of the law is expanded, the imputation criteria and considerations of the CPM are changed, there will be changes in the penalty statute and the criteria for their imposition. He also highlighted that the enforcement of this law will come into effect for companies one year after its publication. The lawyer emphasized the importance of companies focusing on the risks specific to their industry and protecting those risks through a living and effectively implemented CPM that is constantly evaluated.
Finally, BH Compliance CEO Susana Sierra addressed the proper evaluation of compliance programs, highlighting that the new catalog of crimes can be separated into modules, making it easier for companies to review which crimes apply to them based on the nature of their business, as not all crimes apply universally. Thus, BH Compliance proposes the following macro modules: economic, environmental, information technology, and labor, each containing related offenses. It is worth noting that compliance officers do not need to be experts in everything; instead, there can be various individuals responsible for different topics.
Furthermore, Susana Sierra emphasized that, although certification was eliminated with this new law, that is not the important aspect. The goal of having compliance programs is for the company to demonstrate, in case of being involved in a crime, that it is doing everything possible to prevent corruption. “Truly implemented compliance, according to the real risks the company faced, means they already have good controls.” Therefore, these crimes now become part of the Law on Criminal Liability of Legal Entities and, as a result, will be included in their compliance program. She concluded by urging companies to remain calm, stating that it is not necessary for them to be overwhelmed with risk matrices, and it is best to simplify the project, work in modules, and identify individuals within the organization who can take charge of each one because they are the ones who know it best.