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Michael Farhang of Gibson Dunn Discusses Colombia's Troubled www.fcpareport.com Volume 4, Number 26 December 16, 2015 LATIN AMERICA Regional Risk Spotlight: Michael Farhang of Gibson Dunn Discusses Colombia’s Troubled Corruption History and Recent Reforms By Megan Zwiebel One of the biggest FCPA news stories of 2015 was Farhang: A number of countries in Latin America the surprise guilty plea of former PetroTiger CEO Joseph have histories of dictatorship and military rule and in Sigelman during his DOJ trial. That case brought to the some cases this has led to a wariness about informing on forefront the corruption climate in Colombia, South others or reporting misconduct. That can be challenging America’s fourth-largest economy, with for companies trying to prevent corruption, particularly bountiful natural resources. in the form of hotline reports and internal investigations. [See “How Does Your Company’s Anti-Corruption Colombia’s past, plagued with violence and a Hotline Compare?” The FCPA Report, Vol. 3, difficult-to-control drug trade, continues to shape No. 21 (Oct. 22, 2014).] the country and plays a role in its anti-corruption environment. As recently as the late twentieth Colombia has a somewhat different history, marked century, the Colombian government was engaged in a by political violence and weak government at times decades-long struggle for power with anti-government in the last few decades. The periods of narco-trafficking insurgent groups, most notably the Revolutionary and guerrilla activity have influenced the development Armed Forces of Colombia (FARC). Since then, violence of government institutions because for certain periods has decreased greatly, starting in the early 2000s when of time government agencies were literally under attack President Álvaro Uribe Vélez was elected on a platform by forces seeking to undermine their power. There centered on confronting FARC. In 2010, President Juan is also a certain degree of political corruption that is Manuel Santos Calderón succeeded him in office and historically related to the influence of paramilitary in 2012 announced peace talks between the Colombian groups and narco-trafficking. government and FARC. He has also sponsored a number of initiatives to increase transparency in government As a result of that history, there is a lingering distrust and decrease corruption. of the political institutions and the government faces issues with transparency at high levels. In the last For this installment of the Regional Risk Spotlight, five years, the government has instituted a number The FCPA Report spoke with Michael Farhang, a partner of reforms and there is an upsurge of legitimate at Gibson Dunn and an expert on Latin America, about national government authority, but there is still Colombia’s troubled past and its recent efforts to curb a level of mistrust in some quarters. corruption as it emerges as an economic powerhouse. See previously “Regional Risk Spotlight: Douglas Mancill The Most Pressing Risks of PriceSanond Explains the Thai Corruption Landscape,” The FCPA Report, Vol. 4, No. 24 (Nov. 18, 2015). FCPAR: What are the top corruption risks that companies face when doing business in Colombia? A Troubled Past Influences Views of Government Farhang: Colombia has one of the largest FCPAR: How does the anti-corruption climate economies in Latin America, and with the recent in Colombia compare to that in other parts Free Trade Agreement with the U.S., there are more of Latin America? opportunities for investment by both American and ©2015 The FCPA Report. All rights reserved. 1 www.fcpareport.com Volume 4, Number 26 December 16, 2015 foreign companies. The issues that are encountered by The Santos Administration has also sponsored the businesses in Colombia are similar to those in other Latin Presidential Program for Modernization, Efficiency, American countries with expanding economies such Transparency and Combatting Corruption, led by an as risks in public procurement and in dealing with anti-corruption czar. The purpose of that program is to licensing and taxing agencies. provide high-level guidance to government agencies about how to implement anti-corruption initiatives. Additionally, Transparency International identifies law enforcement as one area where people in Colombia The Attorney General’s office and the Public Prosecutor’s perceive a relatively high risk of corruption. office have responsibilities for prosecuting corruption cases internally, and there are significant efforts being FCPAR: What particular industries are at highest risk? made to modernize the judiciary and ensure that there’s a comprehensive effort at fighting Farhang: Two major industries in Colombia are mining corruption in Colombia. and natural resource extraction. There is also some government administration of health care which can FCPAR: Is the Colombian government doing anything create risks specific to the health care sector. to address corruption risks associated with public procurements specifically? [See “Ceresney, Focusing on Pharma, Discusses SEC Enforcement Priorities and Compliance Expectations,” Farhang: The Colombian government has been The FCPA Report, Vol. 4, No. 6 (Mar. 18, 2015).] working on increasing transparency surrounding public procurements. One of the issues that a lot of countries And of course, in the energy industry there was the have faced in modernizing and making procurement recent PetroTiger enforcement action which included systems more transparent is having accurate records of both domestic enforcement and FCPA enforcement who the decision-makers are, when a tender is opened, resulting in individual prosecutions in the U.S. how decisions are made, and when those decisions are communicated to potential bidders, among other things. [See “Corruption Risks and Compliance Programs in To address this, there is now an electronic procurement the Oil & Gas Industry: An Interview with Samuel Cooper system in Colombia used to increase transparency of Paul Hastings LLP,” The FCPA Report, Vol. 3, No. 6 and recordkeeping. The idea behind the online (Mar. 19, 2014).] procurement system is to have a portal that automatically creates electronic records documenting Colombia’s Anti-Corruption Laws and Initiatives the actions of procurement authorities in the bidding, negotiating and decision-making processes. FCPAR: What are Colombia’s anti-corruption laws like? [See “Detecting and Mitigating Corruption Risk When Farhang: Colombia now has a set of comprehensive Participating in Public Procurements: Understanding anti-corruption laws that criminalize both passive and the Procurement Process (Part One of Three),” The FCPA active bribery. The government can go after both Report, Vol. 4, No. 10 (May 13, 2015); Part Two, Vol. 4, bribers and officials who receive or solicit bribes. No. 11 (May 27, 2015); and Part Three, Vol. 4, No. 12 (Jun. 10, 2015).] New legislation, passed in 2011 and sponsored by President Juan Manuel Santos Calderón’s administration, FCPAR: How are Colombia’s anti-corruption was designed to modernize the prohibitions on bribery efforts succeeding so far? in the public procurement and government contracting sectors. Farhang: There are structural challenges that Colombia faces in terms of modernizing its anti-corruption ©2015 The FCPA Report. All rights reserved. 2 www.fcpareport.com Volume 4, Number 26 December 16, 2015 enforcement. The Colombian government has very Farhang: It’s important to have local counsel when strong control of the major urban areas, but there are operating in another country and certainly Colombia parts of the country, particularly the more rural areas is no exception to that. Good, thoroughly vetted local that are less developed, where security is still an issue. counsel can help interpret some of the recent regulatory So the extent to which anti-corruption initiatives can changes and assist a company in understanding what comprehensively cover all business activities throughout the local risks are. the country is somewhat questionable. Additionally, there hasn’t been a huge amount of improvement FCPAR: What kinds of third parties will companies find in Colombians’ perception of corruption in themselves working with in Colombia and what do their own country. companies need to do to protect themselves? The country still has a ways to go in terms of Farhang: There is the general range of third-party implementing and enforcing the national legislation business partner relationships such as distributors initiatives, but the Colombian government deserves and resellers, agents, brokers, consultants and customs great credit for its efforts to bring Colombia into brokers. Companies should have strong internal policies, alignment with international norms. Colombia recently third-party certifications, and supplier and business signed the OECD’s Anti-Bribery Convention and it’s a partner codes of conduct. Anti-corruption contract signatory to other inter-American conventions and clauses are always valuable when dealing with the U.N. Convention Against Corruption. There third parties in another country. is clearly a very public commitment to anti-corruption enforcement. It’s important to do significant due diligence and vet all third parties, and make sure that any red flags or Doing Business in Colombia corruption risks are adequately resolved and dealt with. In terms of doing government business, there should FCPAR: To what extent are the U.S. government be a priority on making sure that third parties are good and the Colombian government working together business partners and are doing
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