Thursday 12 March (1700-1830)

Elysangela de Oliveira Rabelo

Tozzini Freire Advogados, Sao Paulo

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Session Co-Chairs

Sergio Albarracin Milkbanck Tweed Hadley & McCloy, New York

Sonia Velasco Cuatrecasa Gonçalves Pereira, Madrid

Panellists

Martin Acero Philippi Prietocarrizosa & Uria, Bogota

Oliver Armas Hogan Lovells, New York

Eugenio Besa Morales & Besa, Santiago

Luis Eduardo Lopez Duran, Hoet Pelaez Castillo & Duque, Caracas

Arthur Penteado Machado Meyer Sendacz e Opice, São Paulo

Diego Perez-Ordonez Perez Bustamante & Ponce, Quito

Sonia Velasco opened the session by stating that the purpose of this panel was not specifically about focusing on the details of the regulatory changes in each jurisdiction, but to discuss the consequences of those changes and their impact on how M&A transactions have been done in the region.

Velasco introduced the panellists and the Co-Chair Sergio Albarracin, who after a few remarks about the discussions to be held in this panel, asked Oliver Armas to kick-off the topic addressing the landscape of regulatory compliance and new trends going forward.

Armas mentioned that not only has an increase in enforcement from the US been observed, but also an increase in activity from local prosecutors in many countries in Latin America, such as Brazil, Chile and Mexico. In addition, he also mentioned that in the last five years there has been a clear growth of pre-acquisition due diligence issues and post-acquisition integration issues, and he emphasised the increased use of tools such as corporate criminal liability and lenience programmes, as well as the shift in the trend of having corporate criminal liability in other countries, where before there was only individual prosecutions.

Changing the discussion to focus on the compliance regulatory environment in some specific countries, Albarracin invited Arthur Penteado to speak about the current scenario in Brazil. Penteado described how compliance and anti-corruption issues have been growing in the country, now that there is a local anti-corruption law which is applicable to companies and not to individuals, whose prosecutions follow the provisions of the criminal code. He mentioned that such new anti-corruption law also provides for lenience programmes, fines and different types of penalties, and does not deal with selfreporting. The panellists discussed the impact and consequences of the Petrobras case.

In relation to Ecuador, Diego Perez-Ordonez spoke about the recent enactment of an antitrust law and a new criminal code in Ecuador, which has been specifically designed to prevent corruption and includes corporate criminal liability for the first time in the history of Ecuador.

In Chile, Eugenio Besa commented on a few investigation cases in the country and the consequences of the same, and mentioned that in 2009 an anti-corruption law was enacted and brought the concept of corporate criminal liability, as well as sanctions that vary from fines to the dissolution of legal entities. There have been some cases where companies have been penalised and entered into settlements with the government.

Martin Acero informed the audience that there is no significant new legislation on the matter in Colombia, however, the level of diligence required to the parties has dramatically changed. There are now more investigations and more scrutiny from different stakeholders. He also mentioned that transactions involving some specific sectors, such as pharmaceutical, agribusiness, education and health sectors are now being subjected to a higher level of scrutiny, including the transaction itself, the parties and the lawyers as well. In this particular regard, Velasco asked if in Colombia attorneys are obliged to report to a money laundering commission, and Acero clarified that this is not a requirement in the country.

To close proceedings, the panelists discussed how to handle cases where there may be a potential high level of compliance issues and to advise clients in those cases, so to avoid post-acquisition implications.

Latin American Regional Forum - Newsletter of the International Bar Association Legal Practice Division. v. 8, n. 1. Sept. 2015, p. 16-17.