Developments in Latin America – Notable progress in the region

Isabel Costa Carvalho, Rafael Ribeiro, and Peter Spivack

The legal and enforcement overview

2016 was a busy year for anticorruption enforcement in Latin America. Providing adequate treatment of anticorruption enforcement in the 20 countries and six dependencies that comprise Latin America would require an entire book. There are, however, common elements among these countries’ laws that are worth understanding.

First, more or less every country in the region criminalizes attempted corruption, active bribery (giving a bribe), and passive bribery (receiving a bribe) by individuals.

Second, Latin American laws are based on civil code principles and do not generally have corporate criminal liability — despite being a requirement for membership of the Organisation for Economic Co-operation and Development. Instead, many countries in the region impose civil fines and debarment from public procurement on companies that violate their anticorruption laws. For example, in 2014, Brazil introduced civil fines against companies for corruption offenses in the Clean Companies Act, while Colombia, in February 2016, increased the financial sanctions imposed on companies in Law 1778.

Two notable exceptions are Chile, which has had criminal liability for corporations since 2009, and Argentina, which in October 2016 introduced reforms that include corporate criminal liability. (See “Argentina cracks down on corporate corruption”.)

Although having laws on the books marks a significant step, it is only the first one. Traditionally, anticorruption enforcement in Latin America has been weak, whether because of laws that have provided protection to elected politicians, lack of an independent and transparent judiciary, a tradition of passive prosecutors, or all three.

But that is starting to change: in 2016, Brazil began to flex its enforcement muscles. In addition, on 18 July 2016, Mexico’s new National Anticorruption System was signed into law, with the objective to coordinate the efforts of all Mexican governmental bodies — at federal, state, and municipal levels — involved in anticorruption enforcement. (See “New anticorruption measures in Mexico”.)

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