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Lexology, Risk & Compliance Management 2019 Risk & Compliance Management 2019 Risk & Compliance Risk & Compliance Management 2019 Contributing editor Daniel Lucien Bühr Lalive THE DISPUTES POWERHOUSE Geneva Zurich London lalive.law Publisher Tom Barnes [email protected] Subscriptions Claire Bagnall Risk & Compliance [email protected] Senior business development managers Adam Sargent Management [email protected] Dan White [email protected] 2019 Published by Law Business Research Ltd 87 Lancaster Road London, W11 1QQ, UK Contributing editor Tel: +44 20 3780 4147 Daniel Lucien Bühr Fax: +44 20 7229 6910 Lalive The information provided in this publication is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This Lexology Getting The Deal Through is delighted to publish the third edition of Risk & Compliance information is not intended to create, nor Management, which is available in print and online at www.lexology.com/gtdt. does receipt of it constitute, a lawyer– Lexology Getting The Deal Through provides international expert analysis in key areas of client relationship. The publishers and law, practice and regulation for corporate counsel, cross-border legal practitioners, and company authors accept no responsibility for any directors and officers. acts or omissions contained herein. The information provided was verified between Throughout this edition, and following the unique Lexology Getting The Deal Through format, February and April 2019. Be advised that the same key questions are answered by leading practitioners in each of the jurisdictions featured. this is a developing area. Lexology Getting The Deal Through titles are published annually in print. Please ensure you are referring to the latest edition or to the online version at www.lexology.com/gtdt. © Law Business Research Ltd 2019 Every effort has been made to cover all matters of concern to readers. However, specific No photocopying without a CLA licence. legal advice should always be sought from experienced local advisers. First published 2017 Lexology Getting The Deal Through gratefully acknowledges the efforts of all the contri- Third edition butors to this volume, who were chosen for their recognised expertise. We also extend special ISBN 978-1-83862-111-7 thanks to the contributing editor, Daniel Lucien Bühr of Lalive, for his continued assistance with this volume. Printed and distributed by Encompass Print Solutions Tel: 0844 2480 112 London April 2019 Reproduced with permission from Law Business Research Ltd This article was first published in June 2019 For further information please contact [email protected] www.lexology.com/gtdt 1 © Law Business Research 2019 Contents Global overview 3 Nigeria 49 Daniel Lucien Bühr Babajide Ogundipe, Olajumoke Omotade and Olatunde Ogundipe Lalive Sofunde Osakwe Ogundipe & Belgore Argentina 4 Russia 55 Pedro Serrano Espelta and Gustavo Morales Oliver Alexey Borodak and Sergey Avakyan Marval, O’Farrell & Mairal Norton Rose Fulbright (Central Europe) LLP Brazil 9 Spain 60 Bruno De Luca Drago and Fabianna Vieira Barbosa Morselli Helena Prieto González, Beatriz Bustamante Zorrilla, Demarest Advogados Marta Sánchez Martín and Alejandro Ayala González Garrigues China 14 Gary Gao Switzerland 66 Zhong Lun Daniel Lucien Bühr and Marc Henzelin Lalive Germany 18 Barnim von den Steinen Turkey 72 Rotthege | Wassermann Ümit Hergüner and Zeynep Ahu Sazcı Uzun Hergüner Bilgen Özeke Attorney Partnership Greece 25 Vicky Athanassoglou United Kingdom 77 VAP Law Dan Lavender, Matt McCahearty and Malcolm Walton Macfarlanes LLP Italy 32 Andrea Fedi, Marco Penna and Lucio Scudiero United States 84 Legance – Avvocati Associati Mahnu Davar Arnold & Porter Japan 39 Hiroyuki Nezu, Masataka Hayakawa, Kumpei Ohashi, Teruhisa Toyama Do DOJ policy and the ISO compliance standard overlap? 89 and Tadashi Yuzawa Daniel Lucien Bühr Atsumi & Sakai Lalive Mexico 43 Reynaldo Vizcarra, Jonathan Edward Adams and Lorena Castillo Baker & McKenzie Abogados, SC 2 Risk & Compliance Management 2019 © Law Business Research 2019 Global overview Daniel Lucien Bühr Lalive The third edition of Risk & Compliance Management of the Lexology Digital transformation does not change the principles of good Getting The Deal Through series reflects digital transformation. The governance or the methodology of effective risk and compliance questionnaire now also addresses risk and compliance management, management. However, we need to think about how the principles specifically regarding new technologies and tools such as machine and methods are applied to the challenges ahead. What is the role of learning, artificial intelligence (AI), robots and blockchain. board members, in particular members of audit committees, when they It is surely too early for asking all the right risk and compliance exercise their role as ultimate leaders and supervisors? How can they questions regarding digital transformation, or even for providing the spot risks and ask the right questions in order to avoid defects, fraud, right answers. However, risk and compliance management experts mismanagement, anti-competitive behaviour, corruption or money around the globe understand the importance of asking governance, risk laundering hidden in robots and ‘intelligent’ or ‘self-learning’ systems? and compliance questions regarding digital technologies and searching Also, how can they promote and uphold an organisational culture of for the right answers. At this early stage, it may be wiser to start by transparency, integrity and accountability in an increasingly virtual analysing the ethical and legal principles and due process rules when business reality? addressing the challenges of new tools and processes. The more we think of the beautiful new digital world, the more One of the key questions is always ‘Who is accountable and liable we will realise that risk sources, the uncertainty of events and devel- for a specific action (or omission)?’ If a bank client uses the bank’s robo- opments, and the effects of the uncertainty on objectives will change. adviser (ie, an online, automated portfolio management service that And given the rapid growth of data volumes and transactions, the risks uses computer algorithms instead of human advice) and the client then will multiply or even grow exponentially. And with the changing and loses money as a result of a material defect of the robot, can the bank growing risks, legal risks will also change and grow. My prediction, then blame the robot and argue that as the robot is equipped with AI, therefore, is that in a few years we will experience not only the large- is outside its scope of control and therefore the bank cannot be held scale chances but also the large-scale risks of digital transformation. liable? What if the robot was not defective but the advice followed a And we will see instances of large-scale non-compliance based on the widely spread programming pattern, which created a systemic market new digital means. risk and led to widespread losses of investors? To benefit from the chances and effectively manage the risks of According to legal concepts in the civil law and common law digital transformation, both private and public organisations should systems, the liability for any action or omission falls to an individual or a consider ubiquitous ethical values, legal principles and fundamental legal entity. Therefore, individuals and entities will always remain liable human rights, and follow international best-management practices in for engaging in digital technological means. Accordingly, and ethically their systematic and diligent risk and compliance management. The rightly so, whatever individual or entity employs digital means shall time to do so and ‘get all men and women on deck’ is right now. bear ultimate accountability and liability for damages caused by these I hope you enjoy the 2019 edition of Risk & Compliance Management means. The individuals and entities have a duty of care (ie, they must act and find it interesting and of value to your business. diligently) and are liable for any simple fault. www.lexology.com/gtdt 3 © Law Business Research 2019 Argentina Pedro Serrano Espelta and Gustavo Morales Oliver Marval, O’Farrell & Mairal LEGAL AND REGULATORY FRAMEWORK Laws and regulations 2 Which laws and regulations specifically address corporate Legal role risk and compliance management? 1 What legal role does corporate risk and compliance management play in your jurisdiction? Corporate risk and compliance management is specifically addressed by certain local regulations. The most relevant are: Certain sets of regulations establish standards for risk and compliance • Law No. 27,401, which establishes corporate liability for certain management. The most relevant are mentioned below. illegal interactions with public officials and officials of public With regard to corruption risk management, the Argentine Anti- international organisations; Corruption Law No. 27,401, in force since 1 March 2018, criminalises • Resolution 27/2018 of the Argentine Anti-Corruption Office, which certain illegal interactions between legal entities and public officials or approves guidelines regarding the implementation of risk-based officials of public international organisations, such as bribery. anti-corruption compliance programmes; Law No. 27,401 also regulates anti-corruption integrity programmes. • Law No. 25,246, which sets forth the
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