Another step towards the Argentine access to OECD (Organization for Economic Co-operation and Development).
Thanks to the enactment of the Corporate Criminal Liability Law, Argentina is at the same position as other countries such as Chile, Brazil, Colombia, Spain and France. Under this Law, legal persons are bound to review their internal rules in order to determine whether they comply with the statutory requirements. In addition, as of the entry into force of the Law, Argentina complies with the international agreements undertaken when it ratified the OECD Anti-Bribery Convention.
On March 1st, 2018, Law No. 27401 entered into force (the "Law"). This Law modifies the Argentine Criminal Code ("ACC") and imposes criminal liability to private legal persons, whose corporate capital is either national or foreign, with or without state ownership.
The Law imposes criminal liability to legal persons for the following crimes:
(i) Local or international bribery and influence peddling (section 258 and 258bis of the ACC);
(ii) Negotiations incompatible with public office (section 265 of the ACC);
(iii) Extortion by public officers (section 268 of the ACC);
(iv) Unjust enrichment by public officers and employees (section 268 (1) and (2) of the ACC)
(v) Falsification of balance sheets and reports (section 300 bis of the ACC).
Legal persons will be liable for the abovementioned crimes when, either direct or indirectly, the entity intervened in the commission of the crime or when someone acted in his name, interest or benefit for said purpose; even when this individual had no powers to do so, provided that the legal person ratified the act. Liability is transmissible in case of business reorganization and the legal person will be exempted from liability only if the individual who committed the crime acted exclusively on his own benefit and no advantage was given to the legal person.
The criminal action against the legal person cannot be initiated in cases of amnesty and prescription. The Law establishes that the criminal action against legal persons prescribes after six (6) years as from the crime was committed. It should be noted that the prescription of the criminal action against individuals who were criminal actors or accomplices will not affect the period under which a criminal complaint against the legal person may be initiated.
Moreover, the legal person may be convicted even when the individual who intervened in the crime cannot be identified, provided that from the circumstances of the case it may be concluded that the crime could not have been committed without the consent of the corporate bodies.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.