The Argentine Anti-corruption Office Enacts Guidelines on Compliance Programs

Decree 277/2018, published in the Official Gazette on April 6, 2018, entrusted the Anti-corruption Office (the “AO”)  with the task of establishing guidelines to help legal entities comply with the provisions of articles 22 and 23 of law 27,401, which address the requisites for Compliance/Integrity Programs (the “Programs”)under said law. Hence, the AO prepared a preliminary draft that was released to the public for comments on August 1, 2018. The final version, a document of 70 pages, was published in the Official Gazette on October 4, 2018. This final version includes a few amendments to the initial draft and, as highlighted in Resolution No. 27/2018, contributions made during the public consultation.

The main goal of the guidelines is to “provide a technical guidance for companies, civil society organizations, other legal entities, state agencies, members of the justice system and the professional community”. In addition, “they must be understood as a complement to the various and rich specialized literature on compliance, available in Argentine and foreign sources”.

Under Law No. 27,401, the Programs are a key element for companies to obtain a reduction of or even an exemption from penalties. According to the guidelines, the enforcement authorities may require companies to explain the “reasonableness” of their Programs when enforcing Law No. 27,401.

The guidelines address the design and implementation of the Programs, highlighting that they “must be tailored to each legal entity taking into consideration its own needs, characteristics and culture, as well as the context in which it operates and its associated risks. Two (2) identical Programs will not exist, nr is there an ideal model, nor is there an obvious sequence for developing the Program or  to start it up”.

The guidelines describe steps to follow and aspects to consider when implementing the following elements of the Programs: (i)  top management’s support of the Program (tone from the top), (ii) an ethical code, policies and procedures of integrity, (iii) integrity in public tender process and other interactions with the public sector, (iv) training of directors, administrators and employees, (v) internal whistleblower systems, (vi) protection to whistleblowers from retaliation, (vii) internal investigations, (viii) third party due diligence, (ix) due diligence in certain corporate transactions, (x) internal officer, (xi) periodic risk assessment, and (xii) periodic monitoring and assessment of the adequacy of the Program.

Through Resolution 27/2018, Argentina made its own guide to develop adequate Compliance Programs available, joining other countries that have extensive experience in this field. This is a major step in the enhancement and modernization of Argentina’s anti-bribery and corruption regulations.