Presentation on theme: "Corporate Compliance and enforcement trends Anticorruption & Anti Money Laundering in Latin America Guillermo Jorge Partner Jorge & Dassen Consulting Sao."— Presentation transcript:
Corporate Compliance and enforcement trends Anticorruption & Anti Money Laundering in Latin America Guillermo Jorge Partner Jorge & Dassen Consulting Sao Paulo, Brazil, May 9,
1. Anticorruption OAS Anticorruption Convention –Assets Disclosure policies for public officials –Access to public information –Loosely conflict of interests laws –Financing political parties –Anticorruption offices –Some updates in criminal offences Most remain “in the books” Enforcement of criminal law or administrative fines has been random or “politically” exercised
The shift brought by the global anticorruption campaign The end of the “geographic morality” rule Corruption and bribery are wrong, but inevitable / unavoidable in the South A citizen of the North can engage in acts of corruption in the South, without any moral or legal condemnation to those acts in its jurisdiction Market oriented version (Nye, 1967) –Corruption might help with capital formation –Corruption might help to cut red tape –Corruption might encourage entrepreneurship Political version (Merton, 1968) –Corruption allows the integration of groups who otherwise would not be able to participate in the political process
New Northem Approach to corruption NORTHNORTH SOUTHSOUTH The OECD Governments The Business Community International Financial Institutions Civil society / TI chapters 1994: 5 chapters 1997: 49 chapters New Democracies
Trends in FCPA Enforcement: Criminal Charges – DOJ Activity Source: Sherman & Sterling FCPA Report Increasing aggressive investigations Over Foreign subsidiaries Over foreign and domestic subsidiaries of a foreign parent corporation
Geographic distribution of FCPA Actions Source: Kroll Global Fraud Report. FCPA, June % Source: Kroll Global Fraud Report. FCPA, June 2007
Trends in FCPA Enforcement -SEC Activity 2. Increasing Regulatory sanctions Against a company because of its distributors’ conduct (InVision). Books and records charges if the business purpose requirement is not satisfied. (Bristow Group Inc). Source: Sherman & Sterling FCPA Report 2008
FCPA Trends 3. Increased penalties Parallel Litigation Securities Shareholders claiming to have purchased their shares at inflated prices ERISA Employees whose pensions include company shares Derivative Actions Shareholders to recover for alleged wrongdoing by officers and directors Competitors For having obtained business through bribes International Arbitration (ICSID) Foreign sovereigns against companies accused of bribing officials Whistle blowing Former employees for “blowing the whistle” on bribery or for refusal to violate the FCPA. Combined penalties Baker Hughes$ 44 million Vetco (Korean subs.) $ 26 million Chevron$ 30 million York Intl.$ 22 million Statoil ASA$ 21 million Schnitzer Steel$ 15 million FCPA Trends 4. Parallel Litigation Risks
OECD Convention Enforcement Peer review mechanism Tour de table mechanism G-7Current Investigations None 16 Latin America foreign corruption investigation OtherCurrent Investigations G-7 countries
How are companies facing these new risks? Implementing Effective Compliance Programs –System of internal controls –aligned with existing internal auditing controls! –Establish ethics policy and procedures –and enforce them! –Senior management involving –not only in the books! –Apply the program to agents, consultants, representatives and other intermediaries –without exceptions! –Ongoing training of personnel –aligned with HHRR incentives! –Implement a whistle blowing system –and protect those who makes disclosures! –Implement a “Red flag” system –Include “termination provisions” in written agreements if other parties fail to comply
How are companies facing these risks? Perform specific anti-bribery due diligence –In relationships with intermediaries –In any M & A process –avoid successor liability! Respond quickly to potential violations –Have an Effective crisis management plan Notify appropriate internal parties immediately Begin an internal investigation and a fact finding process Stop payments to suspected involved parties –Hire independent counsel –Preserve business reputation
5. Deferred prosecution in exchange of improving compliance programs M & A Due Diligence 6. Voluntary Disclosure following internal investigations Source: Sherman & Sterling FCPA Report 2008 Incentives to increase compliance
2. Anti Money Laundering Risks Unlike anticorruption efforts, Latin American countries are more prepared to detect transactions involving proceeds of (any) crime. –FIUs networks –Egmont Group –STR systems –Increasing compliance with reporting requirements In addition, USA Patriot Act Section 319 –US Banks must respond DOJ, DOT and regulatory authorities including Foreign deposits Deposits at foreign branches or subsidiaries even in any currency –Deposits into foreign banks are considered deposits into any bank account the bank may have in the US Freezing orders can be made in a US bank against the equivalent of funds deposited in an overseas account of a foreign bank that maintains a correspondent account in the US. Example: X deposit R$ 100,000 in a Brazilian bank in Sao Paulo. The Brazilian bank has a correspondent account in USD with the Brazilian branch in New York. The US Government can restrain equivalent amount in dollars from the NY branch.
Anti-money laundering risks OFAC programs –Blacklisted terrorists, traffickers -and all their front companies! –US Banks main responsibility for compliance with OFAC policies Brazilian company A instructs its local bank to wire USD 1 million to a Thailand supplier’s bank account at “Thai First National Bank”. Local bank instructs its correspondent in NY to make the payment. The NY correspondent bank FREEZE the transaction because while Thailand is not a blocked country, it is believe that “Thai First National Bank” is believed by OFAC to be a front company of the Burmese Government, blacklisted under OFAC. The funds may remain frozen in spite of allegations nobody was involved in illicit activity. The US correspondent bank is prohibited from advising the Brazilian company that the transfer may face OFAC problems.
Conclusions In spite of Latin American modest progress in the area of anti- corruption, there are serious legal, commercial and damage-reputation risks associated with improper payments to public officials Anti-money laundering institutions have been growing fast and healthy in Latin America. Financial information is no longer secret or beyond law enforcement Sound compliance programs & “effective crisis management plans” have been the most effective respond to these new challenges.