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Anti-Corruption

Argentina: Guidelines for the Implementation of Compliance programs issued by the Anti-corruption Office

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Argentina | October 6 2018

The Anticorruption Office Resolution 27/2018 (the “Resolution”) published yesterday, in the Official Gazette contains guidelines for companies to adapt their Compliance Programs as established in Sections 22 and 23 of the Law on Corporate Criminal Liability No. 27.401 (“Law 27,401”).

The Resolution provides procedures very similar to international guidelines, that each company could use to design an adequate Compliance Program to prevent, detect and report corruption offenses, according to their commercial activity, their risk assessment and their organizational structure.

According to Law 27,401, legal entities may be sanctioned for the following corruption offenses: (i) national and transnational bribery and influence peddling, (sections 258 and 258 b Argentine Criminal Code – “ACC”); (ii) improper and unlawful transactions of public officials (section 265 ACC); (iii) illegal exaction committed by a public official (section 268 ACC); (iv) illicit enrichment of public officials and employees (section 268, subsections 1 and 2 ACC); and (v) false balance sheets and reports (section 300 bis ACC).

The guidelines contained in the Resolution give to both, the companies and the judges, very useful references to determine if the Compliance or Integrity Programs were tailored to each company.

Companies with intention to contract with government must have an adequate Integrity Program in accordance with Sections 22 and 23 of Law 27.401 (Section 24 of Law 27,401). In addition, and according to some media clipping, the Anticorruption Office would enforce the implementation of the guidelines included in the Resolution, to the companies with contracts with the government and/or in process to engage with the government in the execution of public works.

Although the Resolution clarifies that the recommendations are not mandatory, the companies willing to adapt their Compliance Programs can use the guidelines included in the Resolution, to adjust their compliance policies to Law 27,401 and prevent their exposure to criminal consequences and/or potential investigations related to corruption offenses.

Therefore, it is highly recommended to companies to adequate their Compliance Programs based on the guidelines included in the Resolution.

 

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Fernando Goldaracena is a partner in Baker McKenzie Buenos Aires Office. He heads the White Collar Crime Practice Group and is a member of the Compliance & Investigations Practice Group. Prior to joining the Firm, Fernando served as secretary of the Federal Criminal Court No. 2 of San Isidro, where he led several criminal investigations ranging from white collar crimes, public corruption and tax fraud. He is member of both the Compliance & Money Laundering and the Criminal Law Practice Groups of the City of Buenos Aires Bar Association (Colegio de Abogados de la Ciudad de Buenos Aires).

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Vanina Caniza is a partner in Baker McKenzie’s Buenos Aires office. She advises clients in a variety of corporate and commercial law matters, with extensive experience in corporate compliance, commercial agreements and mergers & acquisitions. She represents and advises Argentine and foreign companies. She completed postgraduate courses on Biotechnology at Universidad Torcuato di Tella (Buenos Aires) and on Health Law at Universidad de Buenos Aires. She sits on the Steering Committee of the Firm’s Latin America Corporate Compliance Group and on the Steering Committee of the Firm’s Latin America Pharmaceuticals & Healthcare Industry Group. She is currently a professor in the CEC Compliance & Ethics Certification (AAEC-UCEMA).

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Luis Dates is a partner in Baker McKenzie's Buenos Aires office, where he heads the Dispute Resolution and Public Law practice groups. He has broad experience advising national and foreign companies across a range of public and administrative law issues, particularly doing business with the national government, provinces, municipalities and state-owned enterprises. He also assists and represents clients in complex and multidisciplinary litigation, and is active in domestic and international arbitration. Luis is a mediator and arbitrator for the Private Center of Mediation and Arbitration. He has written books and numerous articles for various legal publications on topics related to his field. He is also a professor at the School of Law of the University of Buenos Aires.

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