Anti corruption

Key 2017 developments in Latin American anti-corruption enforcement

Anti-corruption laws are being tightened across Latin America and businesses active in the region need to take note. In this article, lawyers at Gibson Dunn & Crutcher review key recent developments in Mexico, Brazil, Argentina, Colombia, and Peru.

n 2017, several Latin American countries stepped up enforcement I and legislative efforts to address corruption in the region. Enforcement activity regarding alleged bribery schemes involving construction conglomerate Odebrecht rippled across Latin America’s business and political environments during the year, with allegations stemming from Brazil’s ongoing Operation Car Wash investigation leading to prosecutions in neighbouring countries. Simultaneously, governments in Latin America have made efforts to strengthen legislative regimes to combat corruption, including expanding liability provisions targeting foreign companies and private individuals. This article focuses on five Latin totaling $10.5 million USD to Mexican corruption cases. The allegations are also American countries (Mexico, Brazil, government officials between 2010 and notable due to their similarity to the Argentina, Colombia, and Peru) that 2014 to secure public contracts. 4 In allegations in Brazil’s Car Wash have ramped up anti-corruption September 2017, Mexico’s SFP released a investigation. In both inquiries, funds enforcement or passed legislation statement noting the agency had were allegedly embezzled from state expanding anti-corruption legal identified $119 million pesos (approx. coffers for the benefit of political party regimes. 1 New laws in the region, $6.7 million USD) in administrative campaigns. coupled with potentially renewed irregularities involving a Pemex public prosecutorial vigour to enforce them, servant and a contract with an Odebrecht Legislative update make it imperative for companies subsidiary. 5 Mexico’s General Law of Administrative operating in Latin America to have In December 2017, Mexican law Responsibility (‘GLAR’) – an anti- robust compliance programmes, as well enforcement authorities arrested a corruption law that provides for as vigilance regarding enforcement former high-level official in the political administrative liability for corporate trends impacting their industries. party of Mexican President Enrique Peña misconduct – took effect on 19 July 2017. Nieto. 6 The former official, Alejandro The GLAR establishes administrative Gutiérrez, allegedly participated in a penalties for improper payments to broad scheme to funnel public funds to government officials, bid rigging in Mexico political parties. 7 While the inquiry has public procurement processes, the use of not yet enveloped the private sector like undue influence, and other corrupt acts. 8 Notable enforcement actions and Brazil’s Operation Car Wash The law reinforces a series of Mexican investigations investigation, the prosecution could legal reforms from 2016 that expanded In 2017, Petróleos Mexicanos (‘Pemex’) signal a new willingness from Mexican the scope of the country’s existing anti- disclosed that Mexico’s Ministry of the authorities to take on large-scale corruption laws and created a new Public Function (‘SFP’) initiated eight anti-corruption enforcement regime administrative sanctions proceedings in encompassing federal, state, and connection with contract irregularities municipal levels of government. Among involving Odebrecht affiliates. 2 The the GLAR’s most significant changes are inquiries stem from a 2016 Odebrecht provisions that target corrupt activities deferred prosecution agreement (‘DPA’) by corporate entities and create with the US Department of Justice incentives for companies to implement (‘DOJ’). 3 According to the DPA, compliance programmes to avoid or Odebrecht made corrupt payments minimise corporate liability.

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The GLAR applies to all Mexican $597,000 USD); 21 (2) preclusion from noted, the GLAR’s non-monetary public officials who commit what the law participating in public procurements and sanctions include preclusion from calls ‘non-serious’ and ‘serious’ projects (for a maximum of eight years); 22 participating in public procurements and administrative offences. 9 Non-serious and/or (3) liability for any damages projects for up to eight years (for physical administrative offences include the incurred by any affected public entities or persons) or ten years (for companies). 30 If failure to uphold certain responsibilities governments. 23 a person subject to a preclusion sanction of public officials, as defined by the Legal entities, on the other hand, can self-reports GLAR violations, the GLAR (e.g., cooperating with judicial and be fined up to twice the benefit obtained, preclusion sanction can be reduced or administrative proceedings, reporting or up to approximately $5,970,000 USD, completely lifted by the Mexican misconduct, etc.). 10 Serious precluded from participating in public authorities. 31 Requirements for obtaining administrative offences include accepting procurements for up to ten years, and a reduction of penalties through self- (or demanding) bribes, embezzling held liable for damages. 24 The GLAR also reporting include: (1) involvement in an public funds, and committing other creates two additional penalties for legal alleged GLAR infraction and being the corrupt acts, as defined by the GLAR. 11 entities: suspension of activities within first to contribute information that proves The GLAR also applies to private persons the country for up to three years, and the existence of misconduct and who (companies and individuals) who dissolution. 25 Article 81 limits the ability committed the violations; (2) refraining commit acts considered to be ‘linked to to enforce these two stiffer penalties to from notifying other suspects that an serious administrative offences’. 12 These situations where (1) there was an administrative responsibility action has offences include the following: economic benefit and the administration, been initiated; (3) full and ongoing compliance department, or partners were cooperation with the investigative l Bribery of a public official (directly or involved, or (2) the company committed authorities; and (4) suspension of any through third parties); 13 the prohibited conduct in a systemic further participation in the alleged l Participation in any federal, state, or fashion. 26 The GLAR’s penalties for infraction. 32 municipal administrative proceedings physical and legal persons are Notably, other participants in the from which the person has been administrative, rather than criminal. alleged misconduct who might be the banned for past misconduct; 14 Under Article 25 of the GLAR, second (or later) to disclose information l The use of economic or political power Mexican authorities can take into account could receive up to a 50% penalty (be it actual or apparent) over any a company’s robust compliance ‘Integrity reduction, provided that they also public servant to obtain a benefit or Program’ in determining and potentially comply with the above requirements. 33 If advantage, or to cause injury to any mitigating corporate liability under the a party confesses information to the other person or public official; 15 GLAR. 27 The law requires the Integrity investigative authorities after an l The use of false information to obtain Program to have several elements, administrative action has already begun, an approval, benefit, or advantage, or including clearly written policies and that party could potentially receive a 30% to cause damage to another person or adequate review, training, and reporting reduction of penalties. 34 public servant; 16 systems. 28 l Misuse and misappropriation of The GLAR contains a self-reporting For a full analysis of the GLAR, see public resources, including material, incentive that provides for up to a 70% http://www.gibsondunn.com/publications/P human, and financial resources; 17 reduction of penalties for those who ages/Mexico-General-Law-of- l The hiring of former public officials report past or ongoing misconduct to an Administrative-Responsibility-Targets-Corru who were in office the prior year, investigative authority. 29 As previously pt-Activities-by-Corporate-Entities.aspx acquired confidential information through their prior employment, and give the contractor a benefit in the market and an advantage against competitors; 18 and Taskforce by Transparency l Collusion with one or more private Brazil International. 36 The robust enforcement parties in connection with obtaining environment in Brazil is also reflected in improper benefits or advantages in Following the success of the massive this year’s public company disclosures. federal, state, or municipal public Operation Car Wash investigation into In 2017, 34 companies disclosed contracting processes. 19 Notably, the corruption involving the country’s information regarding new or ongoing collusion provisions apply energy sector, Brazilian regulators inquiries involving Brazil, while extraterritorially and ban coordination launched or advanced inquiries in 2017 disclosures regarding other Latin in ‘international commercial impacting companies in the healthcare, American nations numbered in the transactions’ involving federal, state, meatpacking, and financial industries, single digits. 37 or municipal public contracting among others. Brazilian authorities have processes abroad. 20 also continued to garner international Notable enforcement actions and accolades for their anti-corruption work, investigations The GLAR provides administrative with Brazil’s federal prosecution service penalties for violations committed by (‘Ministério Público Federal’ or ‘MPF’) A. Operation Car Wash (Operação both physical persons and legal entities. winning Global Investigation Review ’s Lava Jato) Physical persons who violate the GLAR ‘Enforcement Agency or Prosecutor of Operation Car Wash, the multi-year can be subjected to: (1) economic the Year’ award for its 2017 Operation investigation into allegations of sanctions (up to two times the benefit Car Wash efforts. 35 This award follows a corruption related to contracts with obtained, or up to approximately 2016 recognition of the Car Wash state-owned oil company Petrobras, has

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remained a focus area for the Brazilian provider. 52 The inquiry stems from a 2015 authorities. The investigation opened congressional investigation. In February four new phases in 2017. Notably, in 2017, it was reported that three employees October 2017, Judge Sergio Moro – the from one of the companies under lead jurist for the investigation – stated at investigation, TM Medical, agreed to plea a public event that the Car Wash inquiry bargains with the federal authorities. 53 was ‘moving toward the final phase’. 38 Judge Moro did not, however, provide a Settlements and leniency potential date for closing the agreements investigation, stating, ‘a good part of the meatpacking plants. 48 Authorities are work is done, but this does not mean that investigating more than 30 UTC Engenharia work does not remain’. 39 To date, meatprocessing companies, including In July 2017, UTC Engenharia signed a Brazilian authorities investigating the Car giants such as JBS S.A. and BRF S.A. leniency agreement with the Brazilian Wash allegations have obtained 177 government and agreed to pay $574 convictions, with sentences totaling more D. Operation Bullish (Operação million BRL (approx. $175 million USD), than 1,750 years in prison. 40 Bullish) including a fine, damages, and unjust On 12 May 2017, the Federal Police enrichment. 54 UTC signed the agreement B. Operation Zealots (Operação launched Operation Bullish, an with Brazil’s Comptroller General of the Zelotes) investigation into fraud and irregularities Union (‘CGU’) and Brazil’s Federal In 2017, Brazilian authorities launched in the manner by which Brazil’s National Attorney General’s Office. 55 Under the new phases of Operation Zealots, a multi- Bank for Economic and Social agreement, UTC must adopt an integrity year investigation into alleged payments Development approved investments of programme and pay its fine within 22 to members of Brazil’s Administrative over $8 billion BRL (approx. $2.4 billion years. 56 Board of Tax Appeals. 41 The investigation USD) for the expansion of the Brazilian According to the Brazilian began as an inquiry into one of the largest meatpacking company JBS. 49 While JBS government, the agreement reflects ‘the alleged tax evasion schemes in the claims that it did not receive any favours basic pillars enumerated by the two country’s history. Large companies and from the bank’s investment arm federal agencies in the negotiations, that banks, including Bradesco, Santander, (‘BNDESPar’), Brazil’s Federal Court of is, speed in obtaining evidence, and Safra, allegedly paid bribes to Accounts (‘TCU’) claims that the bank identification of others involved in the members of the appeals board in crimes, cooperation with investigations, exchange for a reduction or waiver of in 2017, 34 companies and commitment to the implementation taxes owed. 42 Operation Zealots was of effective integrity mechanisms.’ 57 launched in 2015 and initially implicated disclosed information Notably, according to the press release, companies in the financial sector. The regarding new or ongoing the implementation of UTC’s integrity scope of the investigation has expanded programme ‘will be monitored by the in the last two years to also reach inquiries involving Brazil, CGU, which can perform inspections at companies in the automobile sector and while disclosures regarding the company and request access to any a Brazilian steel distributor. 43 Notably, in documents and information necessary.’ 58 2017, a criminal complaint was filed other Latin American against former Brazilian President Luiz nations numbered in the Rolls-Royce plc. Inácio Lula da Silva alleging that he single digits. In January 2017, Rolls-Royce settled received payments in exchange for allegations that the company offered, securing tax benefits for automobile paid, or failed to prevent bribes involving companies. 44 The total amount of evaded approved ‘risky’ investments for JBS with the sale of engines, energy systems, and taxes through various alleged Operation inadequate time for analysis. 50 The related services in Brazil and five other Zealots schemes is estimated to reach Federal Police further claim that although foreign jurisdictions. 59 According to nearly $19 billion BRL (approx. $5.8 BNDESPar approved funds for a JBS charging documents, between 2003 and billion USD). 45 acquisition of a foreign company, the 2013, Rolls-Royce allegedly made acquisition never occurred and the commission payments to an intermediary C. Operation Weak Flesh (Operação investment funds were never returned. 51 while knowing that portions of the Carne Fraca) payments would be paid to officials at In early 2017, the Brazilian Federal Police E. Operation Mister Hyde (Operação Brazil’s state-owned oil company launched an investigation into the alleged Mister Hyde) Petrobras. 60 Rolls-Royce’s intermediary bribery of government food sanitation Brazilian authorities also continued allegedly made more than $1.6 million inspectors called Operation Weak Flesh. 46 inquiries in the healthcare space as part of BRL (approx. $485,700 USD) in corrupt The operation was reported to be one of a multi-year investigation into an alleged payments to obtain contracts for the largest in the history of the Federal ‘Prosthetics Mafia’ of doctors and medical supplying equipment and long-term Police, with Brazilian authorities instrument suppliers that rigged the service agreements. 61 As a part of a global executing 194 search-and-seizure bidding process for surgical supplies. settlement with DOJ, Britain’s Serious warrants. 47 Dozens of inspectors are Investigators alleged that in exchange for Fraud Office, and Brazil’s Ministério accused of taking bribes in exchange for payments, doctors would identify Público Federal, Rolls-Royce agreed to allowing the sale of rancid products, patients for unnecessary surgeries and pay $800 million USD total, with $25.5 falsifying export documents, overlooking ensure that the surgical instruments used million USD of that settlement being paid illicit additives, and failing to inspect in the operations came from a specified to the Brazilian authorities. 62

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SBM Offshore N.V. ‘headquarters, subsidiaries, or Ministério Público Federal Leniency In November 2017, SBM settled representation in Brazil’. 74 While the Agreement Guidance allegations with DOJ that the company Clean Company Act takes a company’s In August 2017, the Ministério Público made payments to foreign officials in compliance programme into Federal issued guidance for prosecutors Brazil, Angola, Equatorial Guinea, consideration in the application of negotiating leniency agreements. 81 The Kazakhstan, and Iraq. 63 According to the sanctions, Rio de Janeiro’s law goes one guidance provides insights into the DPA, SBM used a sales agent to provide step further and requires companies to process Brazil’s prosecutors use for payments and hospitalities to Petrobras have programmes in place before negotiating such agreements and the executives to secure an improper contracting with the state. 75 expectations for collaborators. One advantage in business with the state- section of the guidance, for example, owned company. 64 SBM agreed to pay a Ten Measures Against Corruption states that negotiations should be $238 million USD criminal fine. 65 DOJ An initiative from Brazil’s Ministério conducted by ‘more than one member of took into account overlapping conduct Público Federal to strengthen anti- the MPF’ and preferably by a criminal prosecuted by other jurisdictions when corruption laws has yet to pass both and administrative prosecutor for the calculating SBM’s fine, including the houses of Brazil’s legislative branch. The agency. 82 The guidance also notes the company’s ongoing negotiations with the initiative – called the ‘Ten Measures possibility that the negotiations could MPF and a $240 million USD settlement Against Corruption’ – was first take place together with other Brazilian with the Dutch authorities. 66 The announced by the MPF in 2015. 76 The authorities, including the CGU the chief government’s press release also stated proposal was introduced to Congress as regulator of the Clean Company Act, the that DOJ was ‘grateful to Brazil’s MPF’ a public initiative in 2016 after it received Federal Attorney General’s Office and authorities in the Netherlands and more than 1.7 million signatures of (‘AGU’), the chief anti-trust regulator, Switzerland ‘for providing substantial support from the public. 77 The measures and the TCU. 83 The guidance also notably assistance in gathering evidence during propose changes in corruption laws and details obligations of collaborators in the investigation’. 67 criminal proceedings that would make leniency agreements, including: the judiciary and prosecutor’s office more Braskem/Odebrecht transparent, criminalise unjust l Communicating relevant information In December 2016, Brazilian construction enrichment of civil servants, hold and proof (time frames, locations, etc.); conglomerate Odebrecht and its political parties liable for accepting l Ceasing illicit conduct; petrochemical production subsidiary, undeclared donations, and increase l Implementing a compliance Braskem, resolved bribery charges with penalties for corrupt acts. 78 Consideration programme and submitting to external authorities in Brazil, Switzerland, and the of the proposal was halted in the Senate audit, at the company’s expense; United States. 68 At the time of the 2016 in 2017 after public outrage in response l Collaborating fully with the settlement, the DOJ/SEC segment of the to the lower Congress’s addition of a investigations during the life of the multibillion-dollar resolution was $419 provision that would impose harsh agreement and always acting with million USD. The settlement agreement penalties on the judiciary and federal honesty, loyalty, and good faith, did note, however, that Odebrecht prosecutors for ‘abuse of authority’. 79 without reservation; represented it could pay no more than Operation Car Wash prosecutor Deltan l Paying applicable fines and damages; $2.6 billion USD in penalties. 69 The Dallagnol claimed that the House’s and agreement further noted that the amendments ‘favoured’ white collar l Declaring that all information Brazilian and US authorities would crimes and undermined the proposal’s supplied is correct and accurate, conduct an independent analysis of purpose. 80 under the penalty of rescission of the Odebrecht’s representation. 70 According leniency agreement. 84 to an April 2017 sentencing memorandum filed with the court, the US and Brazilian authorities analysed Odebrecht’s ability to pay the proposed investigation opened in April 2017, for penalty and determined that Odebrecht Argentina example, focuses on the grant of airline was indeed unable to pay a total criminal routes to a company connected to 71 penalty in excess of $2.6 billion USD. Notable enforcement actions and Macri’s father. 88 Argentine prosecutors The sentencing memorandum noted the investigations are also probing allegations that a parties agreed that Odebrecht would government official received payments therefore pay a reduced fine of $93 Investigation into President Mauricio from construction conglomerate 72 million USD to the US government. Macri Odebrecht in connection with renewing Beginning in 2016 and continuing a public contract. 89 At the time of the Legislative updates and agency throughout 2017, federal prosecutors in alleged payments, Odebrecht was a guidance Argentina launched investigations participant in a consortium with a concerning current President Mauricio company connected to Macri’s cousin. 90 State-Level Anti-Corruption Law Macri. 85 While Macri was elected on In late 2017, the state of Rio de Janeiro promises to combat corruption in Investigation into former president 86 passed an anti-corruption law requiring Argentina, his family’s extensive Cristina Fernández de Kirchner companies contracting with the state to business holdings have been scrutinised In April 2017, former president Cristina 73 have compliance programmes. The law by Argentine authorities in connection Fernández de Kirchner was indicted in applies to companies and individuals, with various influence trafficking and connection with allegations that she led 87 including foreign companies with money laundering probes. An a scheme to launder funds

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misappropriated from public coffers under the law, and comply with other through a family-owned business. 91 The conditions of the agreement (including, charges represent the second indictment but not limited to, implementing a filed against Kirchner since she left office compliance programme). 110 more than two years ago. 92 In December Minimal requirements for compliance 2016, charges were brought against programmes consistent with the bill Kirchner alleging that she led a criminal include: organisation that attempted to illegally benefit its members by awarding public benefit, and without providing any l A code of ethics or conduct, or the contracts to construction company advantage’ for the company. 101 The bill existence of integrity policies and Austral Construcciones. 93 In a separate also imposes successor liability on parent procedures applicable to all directors, investigation, a judge ordered Kirchner’s companies in mergers, acquisitions, and administrators, and employees that arrest in connection with allegations that other corporate restructurings. 102 The bill prevent the commission of the crimes she covered up possible Iranian applies to transnational bribery for acts contemplated by the law, 111 involvement in the 1994 bombing of a committed by Argentine citizens and l Specific rules and procedures to Jewish community centre in Buenos Aires entities that are domiciled in Argentina. 103 prevent wrongdoing in the context of in exchange for a potentially lucrative The bill imposes monetary and non- tenders and bidding processes in the trade deal. 94 Other former high-level monetary sanctions, including: execution of administrative contracts, employees in Kirchner’s government or in any other interaction with the have been arrested for unjust enrichment, l Monetary fines from two to five times public sector, 112 and including vice-president Amado Boudou the benefit that was (or could have l Periodic trainings on the compliance and former planning minister Julio de been) obtained by the company, 104 programme for directors, Vido. 95 l Complete or partial suspension of administrators, and employees. 113 activities for up to ten years, 105 Legislative update l Suspension for up to ten years from The law also notes that a compliance In November 2017, Argentina’s Congress participating in public bids, contracts, programme may include additional passed new legislation imposing criminal or any other activity linked to the elements, including, among others: liability on corporations for bribery state, 106 and l Dissolution and liquidation of the l Periodic risk assessments, 114 in April 2017, former corporate person when the entity was l Visible and unequivocal support of the created solely for the purposes of programme from upper president cristina Fernández committing misconduct, or when management, 115 de Kirchner was indicted in misconduct constituted the principal l Misconduct-reporting channels that 107 connection with allegations activities of the entity. are open to third parties and adequately defined, 116 that she led a scheme to Legal entities can be exempted from l Anti-retaliation policies, 117 118 launder funds criminal liability where the company (1) l Internal investigation systems, self-reported misconduct detected l Due diligence processes for M&A misappropriated from public through its own efforts and internal transactions, 119 coffers through a family- investigation, (2) implemented an l Monitoring and evaluation of the adequate internal control and compliance effectiveness of the compliance owned business. system before the misconduct occurred, programme, 120 and and (3) returned undue benefits obtained l Designation of an employee (national and transnational), influence through the misconduct. 108 The bill also responsible for the coordination and peddling, unjust enrichment of public contains provisions allowing for implementation of the programme. 121 officials, falsifying balance sheets and Argentina’s public prosecutor’s office, the reports, and other designated offences. 96 Ministério Público Fiscal, to enter into The compliance programme The bill, called the Law on Corporate collaboration agreements with legal components listed in the law are notably Criminal Liability, applies to both entities. 109 The agreements require legal similar to elements of effective Argentine and multinational companies entities to provide information regarding compliance programmes delineated by domiciled in the country. 97 The law went the misconduct, pay the equivalent of half DOJ, the SEC, and Mexico’s General Law into effect on 1 March 2018. 98 the minimum monetary fine imposed of Administrative Responsibility. 122 Under the bill, legal entities can be held liable for bribery and other misconduct carried out directly or indirectly, with the company’s Odebrecht made more than $11 million intervention, or in the company’s name, Colombia USD in corrupt payments to government interest, or benefit. 99 Legal entities can officials in Colombia to secure public also be held liable if the company ratifies Notable enforcement actions and works contracts. 123 In the wake of this the initially unauthorised actions of a investigations settlement with US authorities and third party. 100 The bill states that legal Brazil’s multi-year investigation into entities are not held liable, however, if the Odebrecht fallout Odebrecht’s dealings, Colombian physical person who committed the According to a December 2016 deferred prosecutors have announced inquiries misconduct acted ‘for his exclusive prosecution agreement with DOJ, into congressional involvement in the

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allegations and have arrested former Santos, among others, include passing Colombian senator Otto Bula for new laws that would provide labour allegedly taking $4.6 million USD in protections and economic incentives for bribes from the company. 124 Odebrecht whistleblowers, require that companies allegedly paid Bula to ensure that a disclose information regarding ‘the contract for the construction of the persons who in reality profit from a Ocaña-Gamarra highway included business or company’, and eliminate the higher-priced tolls that would benefit the use of house arrest for corruption cases. 136 company. 125 Odebrecht also allegedly The President also proposed creating a made $6.5 million USD in payments to Ricaurte, and Leónidas Bustos of group of judges who specialise in anti- former vice-minister of transportation, accepting bribes in order to corrupt corruption cases. 137 Other corruption Gabriel García Morales, in exchange for a judicial proceedings. 131 President Juan reforms considered by Colombia’s contract to construct a section of the Ruta Manuel Santos signed extradition orders Congress in 2017 include requiring del Sol highway. 126 for Moreno and extradited him to lobbyists to disclose meetings with public Florida, where DOJ officials charged him officials and the creation of a registry of Reficar oil refinery with conspiracy to launder money with beneficiaries of public contracts. 138 In 2017, Colombian authorities brought the intent to promote foreign bribery. 132 corruption charges against executives Transnational cooperation from an American engineering firm, Legislative update In 2017, Colombia’s Superintendence of Chicago Bridge & Iron Company In 2017, Colombian President Juan Corporations and the Peruvian Ministry (‘CB&I’), in connection with the Refineria Manuel Santos announced a series of entered into a memorandum of de Cartagena (‘Reficar’) oil refinery. 127 measures to address corruption issues in understanding (‘MOU’) to prosecute The Reficar oil refinery is a subsidiary of the country. 133 The announcement international corruption. 139 The goal of Colombia’s state-owned oil company, followed Colombia’s 2016 passage of its the MOU is to help investigate corruption Ecopetrol. Colombian authorities first foreign bribery statute, the in Peru and Colombia by focusing on a charged CB&I and Reficar executives Transnational Corruption Act (‘TCA’). 134 bilateral exchange of evidence between with various corruption charges, The TCA notably has extraterritorial the two countries. 140 Colombia signed a including unjust enrichment, effect and holds legal entities similar agreement with Spain in 2017. 141 misappropriation of funds, and administratively liable for improper These new efforts are meant to assist embezzlement. 128 According to the payments to foreign government officials partnering states in overcoming the Colombian authorities, Reficar executives made by the entity’s employees, officers, difficulties of cross-border investigations, directed contracts to CB&I without directors, subsidiaries, contractors, or including the need to acquire evidence in abiding by legal requirements for public associates. 135 The new anti-corruption foreign territories. bidding. 129 The Colombian authorities measures announced by President also claimed to have discovered irregularities with payments CB&I received in connection with Reficar contracts, including payments for work that was not performed, reimbursements This marked the end of Odebrecht’s four- for extravagant expenses unrelated to the Peru decade run as a successful bidder on refinery project, and double billing. 130 public work projects in Peru. 144 The Notable enforcement actions and government will now decide on a case-by- Conviction of former anti-corruption investigations case basis what to do with the remaining chief, Luis Gustavo Moreno contracts awarded to Odebrecht. 145 On 27 June 2017, former anti-corruption The Odebrecht scandal has significantly Three of Peru’s recent former chief Luis Gustavo Moreno was arrested impacted the political and anti-corruption presidents have been arrested and/or in his office by the CTI (the Technical landscape in Peru. In its settlement with accused of crimes related to corruption, Investigation Team, a division of the Odebrecht, DOJ disclosed that Odebrecht all with some alleged connection to Colombian Attorney General). It charged executives admitted to funneling around Odebrecht. 146 In July 2017, a Peruvian him with soliciting bribes in return for $29 million USD in bribes to Peruvian judge ordered the arrest of former interfering with anti-corruption government officials between 2004 and president Ollanta Humala and his wife on 142 investigations into Alejandro Lyons 2015. Government officials announced charges of money laundering and Muskus, ex-governor of Córdoba, with that Odebrecht and other companies conspiracy related to the alleged receipt of the possibility of ending such involved in corruption would no longer a $3 million USD bribe from Odebrecht. 147 143 investigations. After his arrest, Moreno be able to bid on public work contracts. Humala, who has continued to maintain turned into a key collaborator with his innocence, became the first former various officials, shedding light on a head of state detained in connection with massive corruption scandal in the the Odebrecht scandal. 148 Prosecutors are judiciary and congressional branch. also investigating former president Alan According to Moreno, the scandal Garcia, who allegedly facilitated irregular involved state politicians such as Musa bidding on the subway in Lima. 149 Besaile Fayad and Bernardo ‘Ñoño’ Elías, Another former president, Alejandro while also accusing judges such as Toledo, was ordered arrested by a Gustavo Malo Fernández, Francisco José Peruvian judge in February, pursuant to

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accusations that he had received $20 autonomously and administratively liable such guidance has been issued. 168 million USD in bribes from Odebrecht in for active transnational bribery when it The Peruvian government has also connection with bidding on the was committed in their name or for them modified the procurement laws via Interoceanic Highway between Brazil and and on their behalf. 160 Decree No. 1352 Decree 1341 to ban any company with Peru. Toledo has remained in the United extended the administrative and representatives who have been convicted States and denied any wrongdoing. 150 A autonomous liability of legal entities to of corruption from securing government formal extradition request to the United include those guilty of active bribery of contracts. 169 The ban applies even if the States for Toledo to return to Peru and public officials. 161 The liability provided crimes are admitted as part of a plea face charges for the alleged bribe is near for in Decree No. 1352 is termed bargain agreement for a reduced approval on the Peruvian side. 151 ‘autonomous’ because a natural person sentence. 170 Even Peru’s current president, Pedro does not have to be found liable first; the Peru has also enacted harsher penalties Pablo Kuczynski, has been unable to Decree’s charges now create independent for public officials found guilty of evade implication in the ever-expanding liability, and an independent entity like a corruption and prohibitions on such Odebrecht probe. Earlier in 2017, he had corporation can be charged separately. 162 officials from being able to work in the to testify as a witness in the same The law provides for autonomous liability public sector post-conviction. Legislative investigation implicating former for certain crimes of bribery and money Decree No. 1243 (the ‘civil death’ law) was President Toledo in the alleged irregular laundering. 163 enacted in late 2016 to establish harsher bidding process to build the Interoceanic Parent companies are not liable for sentences for corruption-related offences Highway. 152 In November 2017, former penalties under the autonomous liability and to increase the ‘civil disqualification’ Odebrecht CEO Marcelo Odebrecht told provisions of Decree No. 1352 unless the period to five to 20 years for corruption Brazilian prosecutors that Odebrecht employees who engaged in corruption or crimes like extortion, simple and hired Kuczynski as a consultant after he money laundering did so with specific aggravated collusion, embezzlement, and had opposed highway contracts granted consent or authorisation from the parent bribery. 171 That said, this disqualification to the company. 153 Kuczynski denied the company. 164 Additionally, companies that only applies to crimes committed as part allegations, but subsequently documents acquire entities found guilty of corruption of a ‘criminal organisation’, and because showed Kuczynski may have received under the autonomous liability provision of the practicalities involved in these $782,000 in payments from Odebrecht may not be separately penalised if the types of crimes, it is unlikely that many through his investment banking firm, acquiring company used proper due officials will be found to have been part of Westfield Capital. 154 Kuczynski narrowly diligence, defined as taking reasonable a ‘criminal organisation’ and thus barred survived an impeachment vote based on actions to verify that no autonomous from public service. 172 the corruption allegations in late liability crimes had been committed. 165 Legislative Decree No. 1295 was also December 2017. 155 Recent additional Finally, entities can avoid autonomous enacted on 30 December 2016 with testimony from an Odebrecht official liability by implementing a sufficient provisions to improve government purporting to confirm impropriety in criminal law compliance programme integrity. 173 The decree created the Kuczynski’s relationship with Odebrecht designed to prevent such crimes of National Registry of Sanctions against has renewed calls for Kuczynski to step corruption from being committed on Civil Servants (Registro Nacional de down or be impeached. 156 behalf of the company. 166 Elements of a Sanciones contra Servidores Civiles). 174 On a regional and local level in Peru, properly designed programme include: This online registry will be updated several governors have been under an autonomous person in charge of the monthly by the National Authority of investigation or accused of corruption. 157 compliance programme, proper Civil Service (Autoridad Nacional del Remarkably, a May 2014 study by Peru’s implementation of complaint procedures, Servicio Civil) and will consolidate all the office of the anti-corruption solicitor continuous monitoring of the information relevant to disciplinary reported that a significant majority of programme, and training for those actions and/or sanctions against public mayors in office between 2011 and 2014 in involved. 167 The Peruvian securities officials (including corruption charges). 175 Peru had been investigated for criminal regulator had promised additional Anyone listed in the registry is prohibited activity. 158 guidance before 1 January 2018 – when from government employment for the the Decree took effect – but, to date, no duration of their registry. 176 n Legislative update The most significant development in anti- corruption legislation in Peru over the last The following Gibson Dunn lawyers assisted in preparing this article: F. Joseph Warin, year was Legislative Decree No. 1352, Michael Farhang, Lisa Alfaro, Tafari Lumumba, Michael Galas, Abiel Garcia, enacted on 6 January 2017. This decree Renee Lizarraga, John Sandoval and Sydney Sherman. modifies Law No. 30424 (Law Regulating Administrative Liability of Legal Entities [email protected] [email protected] [email protected] for the Commission of Active [email protected] [email protected] [email protected] 159 Transnational Bribery), which was [email protected]) [email protected] [email protected] enacted in 2016 to declare that legal entities, including corporations, would be

This article is reprinted from the May 2017 issue of Trade Security Journal. www.tradesecurityjournal.com

7 trade Security Journal Issue 7 Anti corruption

Int’l Anti-Corruption Award case. 89 Hugo Alconada Mon, Un 128 Id. Commercial Guide – Investment Links and notes (Dec. 6, 2016). 64 Deferred Prosecution Operador de Odebrecht le giro 129 Id. Climate Statement (Sept. 20, 37 See generally FCPA Tracker, Agreement, Attach. A ¶¶ 27, 35, US$ 600.00 al jefe de 130 Fiscalía General de la Nación, 2017), 1 https://fcpatracker.com/. United States v. SBM Offshore inteligencia argentine, La Refineria de Cartagena (2017), https://www.export.gov/article?i This article is intended to review 38 key developments in the five See Felipe Gutierrez, Moro se diz N.V., No. 17-686 (S.D. Tex. Nov. Nacion, Jan. 11, 2017, https://www.fiscalia.gov.co/colo d=Peru-Corruption. ‘cansado’ e que trabalho da Lav 29, 2017). http://www.lanacion.com.ar/197 mbia/wp- 151 Peru court approves Toledo named countries. Changes to 65 the compliance environment Jato em Curitiba esta no fim, Press Release, U.S. Dep’t of 4791-un-operador-de- content/uploads/Presentacion-R extradition request, Yahoo Folha de Sao Paulo, Aug. 15, Justice, supra note 63. odebrecht-le-giro-us-600000-al-j EFICAR270417.pdf. News, Mar. 13, 2018, continue throughout Central and 66 131 South America, though they are 2017, Id. efe-de-inteligencia-argentino; Santos ratificó extradición del https://au.news.yahoo.com/worl http://www1.folha.uol.com.br/p 67 Id. AFP, Argentina: fiscal abre causa exfiscal Luis Gustavo Moreno, d/a/39499741/peru-court- not covered in this particular 68 article. oder/2017/10/1923633-moro- Press Release, U.S. Dep’t of contra jefe de espias por giro de RCN Radio, Mar. 12, 2018, approves-toledo-extradition-req 2 diz-que-trabalho-da-lava-jato-e Justice, Odebrecht and Braskem Odebrecht, La Prensa, Jan. 24, https://www.rcnradio.com/judici uest/. Petróleos Mexicanos – Pemex, 152 Report of Foreign Private Issuer m-curitiba-esta- Plead Guilty and Agree to Pay at 2017, al/santos-ratifico-extradicion- Lucas Perelló, Pablo Kuczynski acabando.shtml. Least $3.5 Billion in Global https://www.prensa.com/mundo del-exfiscal-luis-gustavo-moreno Loses Another Battle to the (Form 6-K) (Nov. 11, 2017), at 8. 39 3 Id. Penalties to Resolve Largest /Argentina-fiscal-causa-espias- . Fujimorista Opposition, Global Petróleos Mexicanos – Pemex, 40 132 Report of Foreign Private Issuer See Ministério Público Federal, A Foreign Bribery Case in History Odebrecht_0_4674282545.html. Id. Americans, Sept. 28, 2017, Lava Jato em numeros – STF (Dec. 21, 2016), 90 Mon, supra note 89. 133 Presidencia de la República, https://theglobalamericans.org/ (Form 6-K) (Sept. 29, 2017), at 91 21. (Jan. 12, 2018), https://www.justice.gov/opa/pr/ Frederico Rivas Molina, Cristina Gobierno presenta paquete de 2017/09/perus-pedro-pablo- 4 See Plea Agreement, Attach. B http://www.mpf.mp.br/para-o- odebrecht-and-braskem-plead- Fernández de Kirchner suma iniciativas para combatir la kuczynski-loses-another-battle-f ¶¶ 59-60, United States v. cidadao/caso-lava-jato/atuacao- guilty-and-agree-pay-least-35-bi otro procesamiento por corrupción (Aug. 18, 2017), ujimorista-opposition/; PPK Odebrecht S.A., Cr. No. 16-643 no-stj-e-no-stf/resultados-stf/a- llion-global-penalties-resolve. corrupción, El Pais, Apr. 4, 2017, http://es.presidencia.gov.co/noti declarará el Viernes por Caso lava-jato-em-numeros-stf. 69 Plea Agreement ¶ 21(b), United https://elpais.com/internacional cia/170818-Gobierno-presenta- Odebrecht ante fiscalía, El (RJD) (E.D.N.Y. Dec. 21, 2016). 41 5 See Secretaría de la Función Entenda a Operação Zelotes da States v. Odebrecht, No. 16-643 /2017/04/04/argentina/1491322 paquete-de-iniciativas-para-com Comercio, Mar. 29, 2017, Pública, Abre SFP nuevos Polícia Federal, Folha de São (RJD) (Dec. 21, 2016). 535_840466.html. batir-la-corrupcion. https://elcomercio.pe/politica/ju Paulo, Apr. 1, 2015, 70 Id. at ¶ 21(c). 92 Id. 134 Ley. 1778 de 2016 (Feb. 2, 2016) sticia/ppk-declarara-viernes- procedimientos administrativos 71 93 en contra de filial de Odebrecht http://www1.folha.uol.com.br/m Sentencing Memorandum at 4, Id. Diario Oficial 49.774 (Colo). caso-odebrecht-fiscalia-420928. ercado/2015/04/1611246- United States v. Odebrecht S.A., 94 Max Radwin and Anthony Faiola, 135 Id. at Artículo 2. 153 Ex-Odebrecht CEO Says Hired (Sep. 11, 2017), 136 https://www.gob.mx/sfp/articul entenda-a-operacao-zelotes-da- No. 13-643 (RJD) (Apr. 11, Argentine Ex-president Cristina Presidente anuncia nuevas Peru President as Consultant – os/abre-sfp-nuevos- policia-federal.shtml. 2017). Fernández de Kirchner Charged medidas para seguir Reports, Reuters, Nov. 14, 2017, 42 Id. 72 Id. with Treason, Wash. Post, Dec. enfrentando el desafío de la https://www.reuters.com/article procedimientos-administrativos- 43 73 en-contra-de-filial-de- Mateus Rodrigues, MPF denuncia Lei No. 7753 de 17 de outubro 7, 2017, corrupción y a los corruptos, El /peru-politics/ex-odebrecht-ceo- executivos da Gerdau na Zelotes de 2017, do Rio de Janeiro. https://www.washingtonpost.co Observatario, Apr. 19, 2017, says-hired-peru-president-as-co odebrecht-126170?idiom=es. 74 6 por corrupcão e lavagem de Id. at Artigo 1. m/world/the_americas/argentin http://www.anticorrupcion.gov.c nsultant-reports- Azam Ahmed and J. Jesus 75 Esquivel, Mexico Graft Inquiry dinheiro, Oglobo, Aug. 24, 2017, Id.; Lei No. 12.846 de 2013, at e-ex-president-cristina- o/Paginas/Presidente-anuncia- idUSL1N1NK1H4. https://g1.globo.com/distrito- Artigo 7. fernandez-charged-with-treason nuevas-medidas-para-seguir-enf 154 Peru: President Kuczynski Deepens with Arrest of a 76 Presidential Ally, N.Y. Times, federal/noticia/mpf-denuncia-ex Fausto Macedo, Quais são e o /2017/12/07/e3e326e0-db80- rentando-el-desafio-de-la- Denies Odebrecht Bribe Dec. 20, 2017, ecutivos-da-gerdau-na-zelotes- Que propõem as ’10 Medidas 11e7-a241-0848315642d0_story. corrupcion-y-a-los-corruptos.as Allegations, BBC News, Nov. 16, por-corrupcao-e-lavagem-de-di contra a corrupção’ do html?utm_term=.37df90a6bf06. px. 2017, https://www.nytimes.com/2017/ 95 137 12/20/world/americas/mexico- nheiro.ghtml; MPF denuncia Lula Ministério Público, Estadão, Argentina Former Vice-President Colombia tendrá jueces http://www.bbc.com/news/worl corruption-pri.html. e Gilberto Carvalho por Sept. 16, 2015, Amado Boudou Arrested, BBC especializados en casos de d-latin-america-42006558; 7 Id.; Detienen a extesorero del corrupcao passive na Operacoes http://politica.estadao.com.br/bl News, Nov. 3, 2017, corrupción, El Observatario, Andrea Zarate & Nicholas Casey, PRI por presunto desvío de Zelotes, Oglobo, Sept. 11, 2017, ogs/fausto-macedo/quais-sao-e- http://www.bbc.com/news/worl Dec. 7, 2017, Peru Leader Could Be Biggest to https://g1.globo.com/politica/no o-que-propoem-as-10-medidas- d-latin-america-41867239. http://www.anticorrupcion.gov.c Fall in Latin America Graft recursos en 2016, El Financiero, 96 Dec. 20, 2017, ticia/mpf-denuncia-lula-por- contra-a-corrupcao-do- Argentina Congress Passes Law o/Paginas/Colombia-tendra- Scandal, N.Y. Times, Dec. 19, http://www.elfinanciero.com.mx corrupcao-passiva-na-operacao- ministerio-publico/. to Fight Corporate Corruption, jueces-especializados-en-casos- 2017, zelotes.ghtml. 77 Marcello Larcher, CCJ valida Reuters, Nov. 8 2017, de-corrupcion.aspx. https://www.nytimes.com/2017/ /nacional/detienen-a- 44 138 extesorero-del-pri-por-presunto- MPF denuncia Lula e Gilberto assinaturas do projeto das dez https://www.reuters.com/article Leyes en Contra de la 12/19/world/americas/peru- Carvalho por corrupcao passive medidas contra a corrupção, /us-argentina- Corrupción, la Apuesta del kuczynski-impeachment.html. desvio-de-recursos-en- 155 2016.html. na Operacoes Zelotes, supra Agência Câmara Notícias, Mar. corruption/argentina-congress-p Gobierno Nacional, Actualicese, Simeon Tegel, Peru’s President 8 note 43. 28, 2017, asses-law-to-fight-corporate- July 13, 2017, Survives Impeachment Vote Ley General de 45 Responsabilidades Entenda a Operação Zelotes da http://www2.camara.leg.br/cam corruption-idUSKBN1D83AX; La http://actualicese.com/actualida Over Corruption Charges, Wash. Polícia Federal, supra note 41. aranoticias/noticias/POLITICA/5 Ley de Responsabilidad Penal de d/2017/07/13/leyes-en-contra- Post, Dec. 22, 2017, Administrativas, Artículos 2, 52, 46 66, 70 (July 18, 2016) (Mex.) Estelita H. Carazzai, Bela 27029-CCJ-VALIDA- las Personas Jurídicas, Law No. de-la-corrupcion-la-apuesta-del- https://www.washingtonpost.co Megale, & Camila Mattoso, ASSINATURAS-DO-PROJETO-DAS 27401 (Nov. 8, 2017), Artículo 1 gobierno-nacional/. m/world/the_americas/perus- hereinafter “GLAR”]. 139 9 GLAR at Artículos 49, 51. Operação contra frigoríficos -DEZ-MEDIDAS-CONTRA-A- (Arg.) hereinafter Ley de Colombia y Peru contra soborno president-faces-impeachment-o 10 prende 37 e descobre até carne CORRUPCAO.html. Responsabilidad Penal]. transnacional, El Nuevo Siglo, ver-corruption- Id. at Artículo 49. 78 97 11 Id. at Artículos 51-64. podre à venda, Folha de S. Renan Ramalho, MP apresenta La Ley de Responsabilidad Penal Sep. 23, 2017, allegations/2017/12/20/61b2b62 12 Id. at Artículos 3, 4, 65. Paulo, Mar. 17, 2017, dez propostas para reforçar de las Personas Jurídicas, at http://www.elnuevosiglo.com.co 4-e4d9-11e7-927a- 13 http://www1.folha.uol.com.br/m combate à corrupção no país, Artículo 1, supra note 96. /articulos/09-2017-colombia-y- e72eac1e73b6_story.html?utm_t Bribery includes promising, 98 offering, or giving any benefit, ercado/2017/03/1867309-pf-faz- Oglobo, Mar. 20, 2015, Paula Urien, Cómo reaccionan peru-combatiran-soborno-trans erm=.e542fa1216da. whether it be through money, operacao-contra-frigorificos-e-c http://g1.globo.com/politica/noti las compañías ante la ley penal nacional. Sonia Goldenberg, ‘Game of umpre-quase-40-prisoes.shtml. cia/2015/03/mp-apresenta-dez- empresaria, La Nacion, March 4, 140 Id. Thrones’, Inca Style, N.Y. Times, valuables, property, services well 47 141 below market value, donations, Id. propostas-para-reforcar-combat 2018, See Juan Cruz Peña, Colombia Dec. 28, 2017, 48 Id. e-corrupcao-no-pais.html. https://www.lanacion.com.ar/21 investiga a tres empresas https://www.nytimes.com/2017/ or any other benefit, to a public 49 79 servant or their spouse in return Operação Bullish investiga Felipe Gelani, Lei de abuso de 13848-como-reaccionan-las- españolas por sobornos e 12/28/opinion/peru-kuczynski- for the public servant fraudes em empréstimos no autoridade divide opinões entre companias-ante-la-ley-penal-em irregularidades, El Confidencial, fujimori-pardon-odebrecht.html. BNDES, Agência de Notícias de juristas, Jornal do Brasil, Dec. 4, presaria. May 17, 2017, 156 Jacqueline Fowks, El fantasma performing or refraining from 99 performing any act related to Polícia Federal, May 12, 2017, 2016, Ley de Responsibilidad Penal, at https://www.elconfidencial.com/ de Odebrecht arrecia en Perú, El http://www.pf.gov.br/agencia/n http://m.jb.com.br/pais/noticias Artículo 2, supra note 97. empresas/2017-05-17/colombia- País, Mar. 8, 2018, their duties, or using their 100 influence in their position, for oticias/2017/05/operacao- /2016/12/04/lei-de-abuso-de- Id. at Artículo 1. investiga-empresas-espanolas-s https://elpais.com/internacional bullish-investiga-fraudes-em-em autoridade-divide-opinioes-entre 101 Id. at Artículo 2. obornos-desfalco_1379311/. /2018/03/08/america/15204673 the purpose of obtaining or 102 142 maintaining a benefit or prestimos-no-bndes; Bela -juristas/; Projeto com medidas Id. at Artículo 3. United States v. Odebrecht S.A., 89_977266.html. Megale, Camila Mattoso, & contra a corrupção aguarda 103 Id. at Artículo 29. Docket No. 16-CR-643 (RJD) 157 U.S. State Department Office of advantage, irrespective of the 104 benefit actually being achieved. Raquel Landim, Operação relator na CCJ, Senado Notícias Id. at Artículo 7. (E.D.N.Y. 2016). Investment Affairs, supra note policial põe sob suspeita apoio (Apr. 17, 2017), 105 Id. 143 Odebrecht Banned from Signing 150. Id. at Artículos 52, 66. 106 158 14 do BNDES à expansão da JBS, https://www12.senado.leg.br/no Id. Contracts with Peru State, Id. Id. at Artículo 67. 107 159 15 Folha de S. Paulo, May 12, 2017, ticias/materias/2017/04/17/proj Id. Andina, Jan. 9, 2017, Decreto Legislativo No. 1352, Id. at Artículo 68. 108 16 http://www1.folha.uol.com.br/m eto-com-medidas-contra-a- Id. at Artículo 9. http://www.andina.com.pe/Ingle Artículo 1 (Jan. 2017) (Peru). Id. at Artículo 69. 109 160 17 ercado/2017/05/1883367-pf- corrupcao-aguarda-relator-na-c Id. at Artículo 16. s/noticia-odebrecht-banned- Id. at Artículo 3. Id. at Artículo 71. 110 161 18 deflagra-operacao-que-investiga cj. Id. at Artículos 16, 18. from-signing-contracts-with-per Id. at Artículo 1. Id. at Artículo 72. 80 111 162 19 -fraudes-em-emprestimos-no- Ricardo Brandt, ‘Congresso Id. at Artículo 23. u-state-648542.aspx. Id. at Artículo 4. Id. at Artículo 70. 112 144 163 20 bndes.shtml. destruiu’ as 10 Medidas contra Id. Mitra Taj, Peru to Bar Odebrecht Id. at Artículos 3-4; New Id. 50 113 21 Megale et al., supra note 49. Corrupção, diz procurador da Id. from Public Bids with New Anti- Criminal Liability System for Under Article 81 of the GLAR, if 51 114 no benefit is obtained through Id. Lava Jato, Estadão, Dec. 3, Id. graft Rules, Reuters, Dec. 28, Corporate involved in Corrupt 52 Graziele Frederico and Gabriela 2016, 115 Id. 2016, Practices and/or Money the corrupt act, the financial 116 penalty is calculated by Lapa, Grupo de acusados na http://politica.estadao.com.br/bl Id. http://www.reuters.com/article/ Laundering, ‘máfia de próteses’ do DF fecha ogs/fausto-macedo/congresso- 117 Id. peru-corruption-odebrecht- http://www.estudiorodrigo.com/ multiplying a statutorily defined 118 value by the daily tenor of a acordo de delação premiada, destruiu-as-10-medidas-contra- Id. idUSL1N1EO00K. en/new-criminal-liability- Oglobo, Feb. 9, 2017, corrupcao-diz-procurador-da- 119 Id. 145 Id. system-for-corporate-involved-i Mexican government economic 120 146 reference rate called the Unidad http://g1.globo.com/distrito- lava-jato/. Id. Lucas Perelló, Pablo Kuczynski n-corrupt-practices-andor- federal/noticia/grupo-de-acusad 81 Ministério Público Federal, 121 Id. Loses Another Battle to the money-laundering/. de Medida y Actualización 122 164 (“UMA”). While the UMA is a os-na-mafia-das-proteses-do- Orientation No. 07/2017 – DOJ and SEC, A Resource Guide Fujimorista Opposition, Global Decreto Legislativo No. 1352, df-fecha-acordo-de-delacao-pre Leniency Agreements (Aug. 24, to the U.S. Foreign Corrupt Americans, Sept. 28, 2017, Artículo 3. variable rate that changes over 165 time, the statutory multiple is miada.ghtml. 2017), Practices Act, at 57 (Nov. 14, https://theglobalamericans.org/ Id. at Artículo 17. 53 Id. http://www.mpf.mp.br/pgr/doc 2012); GLAR at Artículo 25. 2017/09/perus-pedro-pablo- 166 Id. static and defined by the GLAR. 54 123 167 For physical persons—if no Ministério da Transparência e umentos/ORIENTAO7_2017.pdf. See Plea Agreement, Attach. B ¶ kuczynski-loses-another-battle-f Id. Controladoria-Geral da União, 82 Id. 51, United States v. Odebrecht ujimorista-opposition/. 168 Omar Manrique, Todas las benefit was obtained—the 83 147 penalty can be up to 150,000 CGU e AGU assinam acordo de Id. S.A., Cr. No. 13-643 (RJD) Simeon Tegel, Latin America’s empresas deberán tomar leniência com UTC Engenharia, 84 Id. (E.D.N.Y. Dec. 21, 2016). Mega-Corruption Scandal Just medidas para prevenir times the UMA (approximately 85 124 $597,000 USD as of May 2017). July 10, 2017, Almudena Calatrava, Argentine ¿Pueden las leyes acabar con la Claimed its Two Biggest Names, corrupción, Gestión, Dec. 27, GLAR, Artículo 81. http://www.cgu.gov.br/noticias/ Clean-up President Macri Finds corrupción?, Política, July 29, Wash. Post, July 15, 2017, 2017, 22 Id. 2017/07/cgu-e-agu-assinam- Scandals of His Own, U.S. News, 2017, https://www.washingtonpost.co https://gestion.pe/economia/em 23 Id. acordo-de-leniencia-com-o-utc- Mar. 3, 2017 http://www.semana.com/nacion m/news/worldviews/wp/2017/07 presas-deberan-medidas- 24 engenharia. https://www.usnews.com/news/ /articulo/corrupcion-10- /15/latin-americas-mega- prevenir-corrupcion-223626. Id. 55 169 25 Id. world/articles/2017-03- proyectos-de-ley-se-tramitan-en corruption-scandal-just-claimed Decreto Legislativo No. 1341, Id. 56 26 Id. 03/argentine-clean-up-president -el-congreso-sirven/534225; -its-two-biggest- Artículo 11 (Jan. 2017) (Peru); Id. 57 27 Id. -macri-finds-scandals-of-his- Julia Symmes Cobb & Guillermo names/?utm_term=.6c05e8a6bb José Antonio Payet & Payet Rey Id. at Artículo 25. 58 28 Id. own; Abren investigación contra Parra-Bernal, Colombia Arrests 8c; Jimena De La Quintana, Cauvi Pérez, PERUVIAN UPDATE The seven required elements of 59 the integrity program are Press Release, U.S. Dep’t of presidente de Argentina por Ex-Senator Linked to Odebrecht Ordenan prisión preventive para – The Impact of “Lava Jato” on delineated in the statute and Justice, Rolls-Royce plc Agrees to presunta asociación ilícita y Graft Scandal, Reuters, Jan. 15, Ollanta Humala y Nadine M&A in Peru, International discussed more fully in Gibson Pay $170 Million Criminal tráfico de influencias, CNN 2017, Heredia, CNN en Espanol, July Institute for the Study of Cross- Dunn’s review of the GLAR, Penalty to Resolve Foreign Español, Mar. 1, 2017, https://www.reuters.com/article 13, 2017, Border Investment and M&A, found at Corrupt Practices Act Case (Jan. http://cnnespanol.cnn.com/2017 /brazil-corruption-odebrecht- http://cnnespanol.cnn.com/2017 May 30, 2017, http://www.gibsondunn.com/pu 17, 2017), /03/01/abren-investigacion-al- colombia/colombia-arrests-ex-se /07/13/ordenan-prision-para- http://xbma.org/forum/peruvia blications/Pages/Mexico- https://www.justice.gov/opa/pr/ presidente-de-argentina-maurici nator-linked-to-odebrecht-graft- ollanta-humala-y-nadine-heredi n-update-the-impact-of-lava- rolls-royce-plc-agrees-pay-170- o-macri-por-entrega-de-rutas- scandal-idUSL1N1F5073. a/. jato-on-ma-in-peru/. General-Law-of-Administrative- 125 148 170 Responsibility-Targets-Corrupt- million-criminal-penalty-resolve- aereas-a-avianca/. Cobb & Parra-Bernal, supra note Id. Decreto Legislativo No. 1341, foreign-corrupt-practices-act. 86 Lucia de Dominicis, 10 124. 149 ¿Cuál es la relación de Alan supra note 169. Activities-by-Corporate-Entities. 60 126 171 aspx. Deferred Prosecution promesas incumplidas de Macri Jose Maria Irujo & Joaquin Girl, García con el caso Odebrecht y Ejecutivo oficializó ley de muerte 29 GLAR at Artículos 88-89. Agreement, Attach. A ¶ 20, en sus 2 años de gobierno, La La policía investiga la conexión Lava Jato?, Radio Programas del civil para corruptos, El 30 Id. at Artículo 81. United States v. Rolls-Royce plc, Primera Piedra, Dec. 10, 2017, Colombia-Miami en los pagos al Perú, Aug. 7, 2017, Comercio, Oct. 22, 2016, 31 Id. at Artículos 88-89. No. 2:16-CR-00247-EAS (S.D. http://www.laprimerapiedra.co Exviceministro García Morales, http://rpp.pe/politica/judiciales/l http://elcomercio.pe/politica/go 32 Ohio. Dec. 20, 2016). m.ar/2017/12/10-promesas- El Pais, Nov. 9, 2017, a-relacion-de-alan-garcia-con- bierno/ejecutivo-oficializo-ley- Id. at Artículo 89. 61 33 Id. incumplidas-de-macri/. https://elpais.com/internacional los-casos-odebrecht-y-lava-jato- muerte-civil-corruptos-273517; Id. 62 87 34 Press Release, U.S. Dep’t of Calatrava, supra note 85; Fiscal /2017/11/06/actualidad/1509965 noticia-1049631. Decreto Legislativo No. 1243, Id. 150 35 Justice, supra note 59. argentino abre investigación a 659_671036.html. Ryan Dube, Judge Orders Arrest Artículo 38 (Oct. 2016) (Peru). Ministério Público Federal, MPF 63 127 172 recebe prêmio internacional por Press Release, U.S. Dep’t of Mauricio Macri por firmas Fiscalía General de la Nación, of Former Peruvian President Comentarios a la “Muerte Civil,” trabalho no combate à Justice, SBM Offshore N.V. and ‘offshore,’ La Prensa, Apr. 7, Imputados empresarios Alejandro Toledo in Odebrecht Decreto Legislativo 1243, corrupção (Nov. 6, 2017), United States-Based Subsidiary 2016,https://www.prensa.com/ extranjeros y colombianos por Bribery Case, Wall Street J., Feb. Parthenon, Nov. 1, 2016, http://www.mpf.mp.br/rj/sala- Resolve Foreign Corrupt mundo/Fiscal-argentino- corrupción en la construcción de 9, http://www.parthenon.pe/editor de-imprensa/noticias-rj/mpf-rec Practices Act Case Involving investigacion-Mauricio-Macri_0_ Reficar (July 26, 2017), 2017,https://www.wsj.com/artic ial/comentarios-a-la-muerte- Bribes in Five Countries (Nov. 4455304547.html. https://www.fiscalia.gov.co/colo les/judge-orders-arrest-of- civil-decreto-legislativo-1243/. ebe-premio-internacional-pelo- 88 173 combate-a-corrupcao. 29, 2017), Abren investigación contra mbia/bolsillos-de- former-peruvian-president-aleja Decreto Legislativo No. 1295 36 Press Release, Transparency Int’l https://www.justice.gov/opa/pr/ presidente de Argentina por cristal/imputados-empresarios-e ndro-toledo-in-odebrecht- (Dec. 2016) (Peru). sbm-offshore-nv-and-united- presunta asociación ilícita y xtranjeros-y-colombianos-por- bribery-case-1486698137; U.S. 174 Id. at Artículo 1. Secretariat, Brazil’s Carwash 175 Task Force Wins Transparency states-based-subsidiary-resolve- tráfico de influencias, supra corrupcion-en-la-construccion-d State Department Office of Id. at Artículo 4. foreign-corrupt-practices-act- note 85. e-reficar/. Investment Affairs, Peru Country 176 Id.

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