i INTRODUCTION

The main enforcement authorities empowered to investigate and prosecute corporate misconduct are the public prosecutors and investigative magistrates as regards the investigation stage of a criminal procedure, and the criminal courts with regard to adjudication. The police perform investigative measures, including dawn raids or searches, but only following magistrates' approval.

Argentina is a federal country. The federal government shares its responsibilities with 24 electoral districts, comprising 23 provinces and the autonomous city of Buenos Aires. By constitutional design, the provincial governments have authority over criminal procedure law, so the procedural model varies across the country. Federal offences (including corruption and money laundering) are subject to the applicable federal jurisdiction, where the criminal investigation is still in charge of an investigative magistrate who has the power to delegate this task to the prosecutor – an inquisitorial-oriented procedural model. A new Criminal Procedure Code establishing an adversarial model in which prosecutors investigate under judges' control and adjudication was approved by Congress on 6 December 2018; however, its implementation is still pending. In most provinces, adversarial procedures are already in force. In this chapter, we refer specifically to federal criminal procedure law.

Although both the judiciary and Public Prosecutor's Office (MPF) are independent constitutional powers, both federal prosecutors and judges behave strategically, especially with regard to public corruption or politically sensitive cases. Currently, corporate conduct can only be criminally prosecuted for corruption offences (e.g., money laundering, terrorist financing, insider trading and market manipulation) and economic offences (e.g., with regard to tax, customs, the foreign exchange regime and the social security system).

For the prosecution of corruption and economic offences, the Office of Economic Criminality and Money Laundering (PROCELAC), a specialised body within the MPF, may become involved. Further, although only empowered to investigate public officials – not corporate wrongdoing – the investigative capacities and participation in criminal proceedings of the Office of Administrative Investigations (PIA) within the MPF, and Anti-Corruption Office within the Ministry of Justice and Human Rights, may have an impact in the investigation of corporate conduct.

Law No. 27,442 foresaw the creation of the National Competition Authority as the enforcement authority for competition matters. However, this authority is yet to be created.

There is no legal obligation for companies to cooperate with the enforcement authorities. The Argentine legal tradition is unfamiliar with public-private cooperation in criminal investigations, but this should change with the Corporate Criminal Liability Law No. 27,401, which entered into force in March 2018, establishing corporate criminal liability for specific corruption offences. Law No. 27,401 acknowledges internal investigations as an element of compliance programmes, and incentivises cooperation by allowing leniency agreements (similar to deferred prosecution agreements or non-prosecution agreements in the United States) and sanctions mitigation in exchange. Although there are so far no precedents for corporate cooperation agreements, with the heightened anti-corruption enforcement environment, especially following the Notebooks scandal (where several cooperation agreements with individual defendants boosted the investigation), it is expected that a new practice of cooperation agreements with businesses will gradually flourish.

ii CONDUCT

i Self-reporting

Legal entities are not legally obliged to self-report when they discover internal wrongdoing, but recent legislation encourages corporations to self-report by providing immunity under certain conditions.

Under Section 9, Law No. 27,401, corporations will be exempted from penalties and administrative liability when three conditions have been met:

  1. the corporation self-reports a crime defined by law as a consequence of internal detection and investigation;
  2. before the facts under investigation occurred, a proper control and supervision system was established (i.e., a compliance programme) and the breach of this system required effort from the wrongdoers; and
  3. any undue benefit obtained through the crime is returned (disgorgement).

Further, if the tribunal does not consider all three conditions fulfilled, self-reporting should be taken into account as a mitigating factor when assessing the penalty.2

Additionally, Law No. 27,442 on competition establishes the possibility for any natural person or corporation involved in any illegal anticompetitive agreement to request eligibility for a leniency programme.3 The benefits of leniency programmes range from a full exemption to a reduction of the sanctions, depending on the fulfilled requirements and whether the applicant is the first in the run.

In both cases, self-reporting must be 'spontaneous', that is, not motivated by a state investigation.

In short, there is no legal obligation in Argentina to self-disclose internal wrongdoing. In corruption and competition matters, the new legal framework attempts to incentivise this form of cooperation by offering immunity or lenient treatment, depending on the conditions fulfilled, which will be assessed by the enforcement authorities.

Two exceptions to the lack of obligation to self-report should be taken into account:

  1. In application of the transparency regime of publicly traded corporations, according to Section 99a of the Stock Market Act, companies that are publicly listed at the National Securities Commission (CNV) must disclose to the same authority any fact or situation that could substantially affect the placement of securities of the issuer, the course of the securities' trading or the development of its activities – including internal wrongdoing.
  2. Public servants have the duty to report offences that are known to them in the exercise of their public functions.4 This is particularly important for directors of state-owned enterprises or government-appointed directors in businesses in which the state is a minority shareholder, who have been considered public officials by courts, and are thus obliged to report any wrongdoing as revealed by an internal investigation.

ii Internal investigations

Law No. 27,401 establishes that corporations may conduct internal investigations with due respect of the rights of the persons under investigation, and impose effective sanctions in the case of violations to internal policies or applicable laws. This is the first legal recognition to internal investigations as a relevant element of corporate compliance programmes in the Argentine legal system.

If a company decides to conduct an internal investigation, it is essential that the investigation process observes the limits arising from employees' rights, privacy and dignity.5 Information management must comply with the rules on gathering and handling of personal information.6 There must be a balance between the right to investigate and the protection of privacy and dignity.

It is, therefore, important that internal investigation actions respond to a written internal protocol previously approved by the board, and previously communicated and agreed with the potential investigated persons in the form of a written agreement. Such agreement must include entitling the company to access the sources and devices provided to the employees to perform their work. Employees must be warned about the fact that information stored in such sources is the property of the corporation and that no privacy is to be expected in case such sources are used for personal or illicit purposes.

It is also advisable that the investigations protocol regulates areas such as the chain of custody of the gathered information, how electronic evidence should be handled, and witness interviews, among others.

When conducting witness interviews, the involved employee has the right to retain his own counsel, although this is uncommon, especially when the company has a robust investigation protocol.

The procurement of external counsel to conduct the investigation is advisable, especially when the allegations involve senior management, are particularly serious or may have severe reputational consequences. Retaining outside counsel contributes to strengthening the independence and the credibility of the investigation process, and enhances attorney–client privilege.

Law 23,187, which regulates the requirements for lawyers to practice law in the City of Buenos Aires (each province of Argentina has its own bar association and regulations but all of them have similar provisions), states that lawyers have the obligation to preserve the attorney–client privilege, unless it is waived by the client. Additionally, Section 7 of Law 23,187 establishes that lawyers have the right to the inviolability of the law firm, safeguarding the constitutional right of defence in court.

Further, according to Section 244 of the Criminal Procedure Code, lawyers are forbidden from testifying in court regarding any information received from the client.

To ensure attorney–client privilege, it is important to state in advance that a conversation or document is privileged and confidential, for example, labelling the documents with the attorney's name and establishing that the document is 'private and confidential'.

The provisions mentioned above do not apply for accountants (consulting firms), so companies should bear in mind that to ensure confidentiality it is advisable to always retain an attorney.

In any case, internal investigations are a new feature in Argentine domestic law. The current state of case law is weighted in favour of employees owing to Argentina's robust labour and data privacy protections. But it is expected that case law will grow in the coming years on issues related to privacy, legal privilege, the admissibility of evidence obtained in an internal investigation or disciplinary measures, as a consequence of the entering into force of Law No. 27,401.

iii Whistle-blowers

Since the legal framework had not incentivised whistle-blower reports until very recently, this figure has been almost foreign to domestic investigations. This started to change in late 2016 with the entering into force of two pieces of legislation offering reductions in the threatened punishments to defendants, and economic awards to witnesses.

On the one hand, Law No. 27,304 on cooperators (the Repentant Law), foresees that persons investigated for corruption and other complex crimes (except high-ranking state officials) may obtain a reduction of their punishment and the avoidance of prison during the process in exchange of the disclosure of precise, useful and verifiable data relating to other participants in the offence that occupied a higher hierarchical role in the criminal organisation.

Even though the Repentant Law has some limitations (the 'repenter' cannot receive immunity but only a reduction of the punishment; and the agreement on the reduced sentence will only be applied by a tribunal that didn't take part of the negotiations after an oral trial that the defendant cannot avoid), it has been successfully applied, and provided great visibility to the anticorruption agenda especially in the context of the Notebooks scandal, where multiple businessmen and former public officials reached cooperation agreements boosting the investigations.

On the other hand, Law No. 27,319 allows for the application of special investigative techniques in complex crimes investigations, including the possibility to offer economic awards to whistle-blowers.

Anonymous reporting lines have been opened in recent years by the PROCELAC and the PIA, at the MPF, and by the Anti-Corruption Office at the Executive. Moreover, different administrative agencies have opened anonymous reporting lines, such as the Tax Administration and the Agri-Food Sanitary Agency (Senasa).

Further, a National Witness Protection Programme has been in place in Argentina since 2003. Even though the programme's resources are limited and protective measures have been considered weak, in recent years it has offered effective protection to several witnesses of grand corruption cases. The programme sets forth several protection measures, including personal or domiciliary custody; temporary accommodation in reserved places; change of address; provision of economic means for lodging, transportation, food, communication, healthcare, moving, labour reintegration, security systems, and other essential expenses, inside or outside the country (although for no more than six months).

When it comes to corporate internal whistle-blowers, Law No. 27,401 encourages companies to establish a procedure for internal reporting so that employees and third parties may file reports under confidentiality or anonymously and without fear of retaliation.

Resistance to whistle-blowing is still prevalent in Argentina, so legal and corporate incentives to come forward and cooperate with information will need to be sustained in time, together with effective anti-retaliation measures, to overcome such cultural trait.

iii ENFORCEMENT

i Corporate liability

Companies can be subject to criminal liability according to several provisions of the Argentine Criminal Code (ACC) and various additional laws. The main offences for which companies could be criminally liable for the conduct of its employees are:

  1. corruption offences (Law No. 27,401);
  2. money laundering (Section 304 and 313, ACC);
  3. terrorist financing (Section 306 and 313, ACC);
  4. insider trading (Sections 307–8 and 313, ACC);
  5. manipulation of financial markets and misleading offers (Section 309 and 313, ACC) and other financial markets offences (Sections 310–11 and 313, ACC);
  6. customs offences (Customs Criminal Law No. 22,415);
  7. offences against the foreign exchange regime (Law No. 19,359);
  8. tax offences (Criminal Tax Law No. 27,430); and
  9. offences against the social security system (Law No. 24.241).

The above-mentioned laws establish vicarious corporate liability systems, by which the corporate body is held liable for the illicit actions committed (in most offences by specifically designated persons like the legal representatives, directors, or managers; in corruption offences by any person including third parties) with the intervention of the entity or on its behalf, or in its interest or benefit.

Corporate or business fraud and other illicit behaviour can also give rise to civil liability for damages.

Generally, according to Section 1749 of the Civil and Commercial Code (CCC) those who breach an obligation and cause unjustified damage by action or omission are directly liable. Specifically concerning fraud, a company could be liable under Section 271 of the CCC for fraudulent misrepresentation if there is an untrue assertion or concealment of the truth or an artifice, cunning act or contrivance directed to such ends. Additionally, as per Section 338 of the CCC, unsecured creditors have the right to revoke acts carried out by the debtor that infringe of their rights, where an act of corporate or business fraud results in insolvency proceeding. The following elements are necessary: the debtor must be in a situation of insolvency (interruption of payments); the damage caused to the creditor must have resulted from the act of the debtor, or due to the situation of prior insolvency; and the debt must have existed before the debtor's actions.

Additionally, Section 59 of the Business Corporation Act established the duty of director or managers to act with loyalty and with the diligence of a good businessman. Failure to comply with this duty can give rise to unlimited joint and several liabilities for the damages caused to the company, the shareholders and other third parties (among others, any creditors), by their actions or omissions.

Most local large corporations in Argentina are family owned businesses. The protection of employees by providing and costing their counsel is quite rooted in their practices. However, in light of the incentives set forth in Law No. 27,401, on corporate criminal liability for corruption offences, conflict could arise between the interests of the company and those of the employees under investigation for the same facts – because the company could mitigate its responsibility by cooperating with the authorities in the identification of the involved employees; high-ranking executives of a corporate body may also divert the internal corporate investigation to hide their own individual responsibilities. When the interests of the legal person and those of its employees may conflict, legal representation should not be exercised by the same counsel. Although not explicitly regulated in the Law, it is expected that the courts will enforce this principle to guarantee the right to defence.

ii Penalties

Although each of the criminal offences mentioned in Section III.i carry their specific penalties, the catalogue of sanctions mainly comprises:

  1. fines up to 10 times the value of the goods that have been the object of the offence in money laundering, terrorist financing, insider trading, and other financial markets offences, and between two and five times the amount of the illicit benefit in corruption offences;
  2. debarment from government contracting and disqualification from professional practice, or suspension of licence;
  3. partial or total suspension of activities for up to 10 years;
  4. suspension from participating in state tenders of public works or services, or in any other activity linked to the state for up to 10 years;
  5. dissolution and liquidation of the business when it has been created to the sole purpose of the commission of the offence, or when those acts constitute its main activity;
  6. loss or suspension of state benefits; and
  7. publication of an excerpt of the conviction sentence.

Sanctions are only applied by courts under a final judgment. Nevertheless, courts may order precautionary measures against business defendants, including seizing and freezing of assets (embargo) to guarantee an eventual confiscation.

iii Compliance programmes

Although legal entities are not required under Law No. 27,401 to implement a Compliance Programme, having an effective one in place may benefit the company.

As explained in Section IV.i, corporations will be exempted from penalty and administrative liability when three circumstances concur simultaneously:

  1. the corporation self-reports a crime defined by law as a consequence of internal detection and investigation;
  2. before the facts under investigation occurred, a proper control and supervision system was established (i.e., a compliance programme) and the breach of this system required effort from the wrongdoers; and
  3. any undue benefit obtained through the crime is returned (disgorgement).

Besides, according to Section 8 of Law No. 27,401, courts will take into account the internal proceedings of the legal entity to graduate the penalty. And it will also be relevant if a company spontaneously reports irregularities revealed by an internal investigation.

On the other hand, having a compliance programme will be a requisite for contracting with the federal government for contracts that:

  1. owing to their amount must be approved by a minister or other authority of equivalent hierarchy (at the time of writing, 100 million or 65 million Argentine pesos, depending on the type of contract, today fixed between 2.13 million and 1.383 million pesos according to the current Argentine peso–US dollar exchange rate); and
  2. are included in Section 4 of the Delegated Decree No. 1023/01 (e.g., purchase, supply, services, leases, consultancy, rent with option to purchase, swaps, concessions on the use of goods that belong to the public and private domain of the nation state) or governed by Laws Nos. 13.064 (on public works), 17.520 (on the concession of public works) and 27.328 (on public-private partnerships) and public utility concessions or licence contracts.

To be considered adequate under Sections 22 and 23 of Law No. 27,401, a compliance programme must:

  1. be appropriate to the specific risks of the activities, size and economic capacity of the legal entity;
  2. include a code of ethics and internal policies to prevent crimes in any interactions with the public sector, and
  3. lay out periodic training on the compliance programme to directors, administrators and employees.

Additionally, the programme may contain the following elements:

  1. periodical analyses of risks and consequent adaptation of the compliance programme;
  2. visible and unequivocal support of the compliance programme from senior management ('tone at the top');
  3. internal channels to report irregularities, open to third parties and adequately publicised;
  4. a policy of whistle-blower protection against retaliation;
  5. an internal investigation system that respects the rights of those under investigation and imposes effective sanctions for breaches of the code of ethics or conduct;
  6. procedures that attest the integrity and track record of third parties or business partners, including suppliers, distributors, service providers, agents and intermediaries, both upon contracting their services and during the commercial relationship;
  7. due diligence during the process of corporate transformations and acquisitions, for the verification of irregularities, illicit conduct or the existence of vulnerabilities in the involved corporations;
  8. monitoring and continuous evaluation of the compliance programme's effectiveness;
  9. an internal authority in charge of the development, coordination and supervision of the compliance programme; and
  10. compliance with the statutory demands over compliance programmes issued by the authorities of the national, provincial, municipal or communal levels of government.

iv Prosecution of individuals

Law No. 27,401 establishes that the criminal responsibility of corporations is independent from that of the individual authors of the offence, and that business can be convicted even if no individual has been identified or judged for such offence, as long as it is found that the offence could not have been committed without the tolerance of the corporate bodies. This rule, and the incentives provided for cooperation, are designed to stimulate both businesses and the individuals to come forward and cooperate with the authorities in the identification of the responsibilities involved.

Of course, in this context a conflict may arise between the company and its employees; see Section III.i.

In the context of a business cooperation strategy, an internal investigation and the enforcement of disciplinary measures are advisable, as well as an internal reorganisation to avoid the repetition of the identified wrongdoing in the future.

iv INTERNATIONAL

i Extraterritorial jurisdiction

Section 258 bis of the ACC criminalises the active bribery of foreign public officials. Additionally, Law No. 27,401 foresees that corporations will be criminally liable for this offence. The elements of the offence are as follows: offering or giving money or any object of pecuniary value, or other benefits such as gifts, favours, promises or benefits, to a foreign public official for his or her benefit or the benefit of a third party, in an economic, financial or commercial transaction. A foreign public official under Argentine law is defined as a public official of another state or territorial entity recognised by Argentina, including those appointed or elected to perform a public function in government or any class of an body, agency or public company where said state exerts a direct or indirect influence.

In any case, the enforcement of this offence is weak in Argentina. At the time of writing, nine investigations had been opened in Argentine for foreign bribery and no conviction has been ruled.

ii International cooperation

Argentina collaborates with foreign authorities in investigations as a member of bilateral, regional and multilateral treaties. For example, Law No. 26,004 on the Mutual Assistance Agreement in Criminal Matters of Mercosur, Bolivia and Chile, and Law No. 26,139 on the Inter-American Convention on Mutual Legal Assistance in Criminal Matters. For countries that do not share a treaty, Law No. 24,767 on International Cooperation in Criminal Matters will be applied. This law also regulates the general provisions of extradition, and other forms of assistance in the investigations of crimes. In addition, the Financial Information Unit (as a member of the Egmont Group), and the Federal Administration of Public Revenues exchange data on a regular basis with their foreign counterparts.

iii Local law considerations

When multiple jurisdictions are implicated in an investigation, certain aspects of the Argentine Personal Data Protection Law No. 25,326 (APDPA) should be taken into account after conducting the email search, if the information gathered by auditors and contained in the emails includes 'personal data' (as broadly defined by the APDPA and its regulatory Decree No. 1558/2001).

The APDPA foresees both administrative and criminal penalties for non-compliance with data protection regulations. In practice, however, violations have almost never resulted in prison sentences.

Notwithstanding the aforementioned, if a database is created as a result of the email search (e.g., a report containing personal data) and the company wants to share this database outside Argentina, there are specific considerations that must be made regarding data protection and international transfers of data.

Depending on the nature of the information transferred abroad, the exportation of information could be considered an 'international transfer' of personal data in the terms of Section 12 of the APDPA. Therefore, the transfer must be in compliance with the general principles determined in the APDPA and the Data Protection Agency rules.

The APDPA states strict terms for international transfers of data, which must be complied with by the entity conducting the process audit and its personnel, and – as a principle – forbids any transfer of personal data of any kind to countries or international or supranational organisations that do not grant an adequate level of protection.

In addition, since communication of data and confidential information could also be performed by allowing the foreign company to have 'remote access' to the information contained in the files physically located in Argentina, and even though 'remote access' is not expressly treated in the APDPA, it must be noted that depending on the implementation, remote access could by analogy either: be considered as, or associated to, an international transfer, and therefore Section 12 of the APDPA will apply; or be considered an unauthorised access or disclosure to third parties of personal data or sensitive information, which should be kept secret by provision of law, and thus subject to civil and penal sanctions.

The prohibition of Section 12 of the APDPA does not apply in certain cases, such as: judicial international cooperation; banking or capital markets transactions authorised by applicable law; and international transfer taken place in the framework of international treaties to which Argentina is part.

The prohibition will also not apply in the case of express consent of data subjects (according to Section 12 of Decree 1558/2001, which regulates the APDPA). Also, in practice, the Argentine Data Protection Agency has also granted permission to international data transfers to countries not granting adequate levels of protection if such adequate protection levels arise from contractual clauses, binding corporate rules, or self-regulation systems from the data assignor and data assignee.

The Data Protection Agency is entitled to pursue criminal proceedings if it considers that a person or entity reveals or transfers data in violation of the APDPA.

From a strictly labour law standpoint, the general principle is that employees may legitimately consider that their emails (specifically those unrelated to their work) are private and not meant to be read by any other person. Therefore, for companies to lawfully monitor and audit their employees' email accounts (as a tool provided by the employer), it shall be necessary to previously inform the employees about the company's policy and the method of monitoring. To ensure the employer's monitoring rights and employees' privacy rights are balanced, companies shall make a cautious and properly articulated use of their rights and powers, which could be broadly defined in corporate guidelines or policies.

Therefore, it is usually understood that corporate policies on the matter should clearly establish that email accounts are of the exclusive and sole property of the company and can only be used for working purposes. Accordingly, its personal use would be considered as misconduct.

Regarding attorney–client privilege, there are no specific provisions as to the circumstances in which foreign protections for attorney–client communications are recognised in Argentina. However, by virtue of constitutional rights and public and private international law, foreign protections of attorney–client communications should be recognised in Argentina to at least the same extent as local protections. Nevertheless, it would be advisable to engage local counsel to secure these protections.

v YEAR IN REVIEW

Recent years have shown a peak in anti-corruption and anti-money laundering enforcement, boosted by both legal and regulatory reform and a changing political environment, not only at the national but also a regional level (e.g., Brazil, Chile and Peru). After several cases in which high-ranking officials of the former administration were prosecuted and imprisoned on corruption and money laundering charges, 2018 was the year in which, boosted by the Notebooks scandal, law enforcement also reached private sector executives – a historical debt of anticorruption enforcement in Argentina.

The Notebooks scandal began in August 2018, when the notes of a driver of a high-ranking official in the Ministry of Planning came to light. The driver meticulously detailed each trip where his boss picked up bags of cash from government contractors and left them at different destinations, including the House of Government and former Argentine presidents Néstor and Cristina Kirchner's personal apartment. Copies of the notes were obtained by a journalist and presented to a federal court.

The corrupt scheme was allegedly established during Néstor Kirchner's presidency, from 2003 to 2007, and allegedly continued during Cristina Kirchner's two terms in office, from 2007 to 2015. To obtain federal public works and road concessions, member companies of a cartel organised within Argentina's national construction business association allegedly agreed to pay kickbacks of between 10 and 20 per cent of the total cost of each project. Major businesses in the construction industry have been implicated and similar allegations in Argentina's energy and transport industries are currently being investigated. The notebooks themselves document at least US$35.6 million in payments, although Argentinian prosecutors estimate that the true figure may be closer to US$200 million.

Since the scandal broke, an aggressive investigation has been conducted – in contrast to lax historical efforts to combat corruption. Prosecutors have benefited in particular from the Repentant Law, allowing leniency agreement with cooperators. So far, around 30 executives have cooperated, resulting in the summoning of controlling shareholders and executives of an additional 75 construction and infrastructure companies, including several of the most prominent business persons in the country.

There have been some difficulties in coordinating investigations with foreign authorities since the Repentant Law does not allow the accused to be exempt from punishment, unlike analogous systems in force in the United States and in Brazil, where the collaborator may aspire to an exemption from punishment or a judicial pardon, respectively.

Finally, corporate liability cases are expected to put in practice and start answering interpretive questions that are still to be addressed in the enforcement of the recently adopted Corporate Criminal Liability Law for corruption offences.

vi CONCLUSIONS AND OUTLOOK

Anti-corruption and anti-money laundering enforcement have shown a peak in recent years. New legal and regulatory frameworks in both areas, as well as in antitrust matters, have left multiple open questions that need to be addressed by judicial adjudication. In the meantime, the Competition Office has issued guidance on the implementation of compliance programmes, but word from the Public Prosecutor's Office, which is the actual enforcement authority, is still expected. In the absence of case law, the issuance of prosecutorial guidance would be a good practice, following the model of the US Department of Justice and Securities and Exchange Commission, and the UK Serious Fraud Office's guidances on the Foreign Corrupt Practices Act and UK Border Agency enforcement.

In early 2019, the national government presented a project bill to reform the Criminal Code. Like previous bills on the same subject presented by the former administrations (which shows a political consensus that is hard to find in other public policy matters), the Criminal Code project foresees corporate criminal liability for most criminal offences, and adopts the same approach and model for attributing corporate responsibility adopted by Law No. 27,401. Notably, the project also criminalises private or commercial bribery – which is currently not an offence in Argentina.

While strengthening the anti-corruption agenda, the Notebooks scandal helped fuel the national economic recession. In recent months, foreign prosecutors and regulators, including the US Securities and Exchange Commission and Department of Justice, have met with their Argentinian counterparts, increasing cautiousness among business partners, potential investors and lenders working with businesses potentially involved in the scandal. The compliance framework established by Law No. 27,401 should help companies in this scenario to overcome the questions they may face in terms of integrity, and continue doing business after a reorganisation of their governance structures. To this end, the government and enforcement authorities also have a key role in reducing the uncertainty that still surrounds legal provisions related to immunity, leniency agreements and the negotiating process that precedes them.


Footnotes

1 Fernando Felipe Basch is a partner and María Emilia Cargnel is an associate at Bruchou, Fernández Madero & Lombardi.

2 Section 10 of Law No. 27,401.

3 Section 60 of Law No. 27,442.

4 Article 177 of the Criminal Procedure Code.

5 Sections 70 and 72 of the Employment Contract Law.

6 Section 43 of Argentina's Constitution and Law 25,236.