Prosecutor Announces First Agreement under Anti-Corruption Law 27401

On September 30, at a conference organized by the Anti-Corruption Office, the Public Prosecutor’s Office, and the Council for Economic Sciences, a public prosecutor announced the signing of the first agreement under the Anti-Corruption Law No. 27401.

A panel featuring Prosecutors Fernando Domínguez, Dafne Paolopoli, and Diana Hernandez, as well as Alejandra Velasquez Tadeu and Gustavo Morales Oliver, discussed the contents and challenges of this agreement.

Prosecutor Fernando Dominguez, who signed the agreement, stated that it will remain undisclosed during the 1-year period set forth in article 21 of Law No. 27401, until the prosecutor or the judge evaluate the merits of the evidence provided by the company. Therefore, Domiguez did not disclose the name of the company or to which industry it belongs, although he highlighted that the agreement has been approved by the judge presiding the case, and that the company is a multinational listed both in the US and Europe.

The prosecutor also highlighted that the Anti-Corruption Law 27401 provides very few details on how to negotiate and implement this kind of agreements with companies, so a memorandum of understanding was signed in this case for the parties to regulate how the negotiations and the signing were to be conducted. He also stated that the most challenging aspects of the agreement, which required several months of negotiations, included how to give confidential treatment to the information provided by the company, how to keep a proper record of the negotiations, and how to calculate the undue benefit that the company obtained or could have obtained as a result of a criminal conduct. Regarding the latter, Dominguez mentioned that the parties agreed that such calculation should be done later by expert witnesses, since it is rather complex. He also mentioned that the agreement includes a commitment on the part of the company to engage in community service and improve its compliance program. The Anti-Corruption Office was asked to assist with this.

In the same panel, Gustavo Morales Oliver, partner at Marval O’Farrell Mairal, stated that in his experience, the most important aspect for multinational companies when evaluating this kind of agreements is that applicable regulations should be precise and clear, and that the agreement is an effective means to resolve the case.

This kind of settlements will become more predictable when more agreements are signed and disclosed, and certain consensus is reached on their implementation.