Matías Balmaceda and Juan Ignacio Piña: “The law wants to stigmatize doing business with crooked companies”

Law firm chosen for top spot in the Compliance ranking by Chambers & Partners, provides legal advice in the application of Law 20393, which makes corporations criminally liable for certain offenses. 

Your firm was chosen as the number-one legal boutique in Compliance together with Deloitte & Touche in the Chambers & Partners ranking. Balmaceda Cox & Piña is led by three partners with different profiles – Matías Balmaceda (B), criminalist; Francisco Cox (C), international litigator (who did not take part in this interview as he was traveling abroad) and Juan Ignacio Piña (P), professor and former chair of the State Defense Council – who apportion all their earnings in equal parts.

Working in Compliance means providing legal advice mostly to companies in the enforcement of Law 20393. In force since 2009, it created – as required by the OECD – the construct of criminal liability for bodies corporate in offenses related to asset laundering, bribery, financing of terrorism and receiving stolen goods.

Your firm has one hundred clients in Chile and has just extended its services to Peru, where legislation very similar to Chile’s will come into force in January 2018.

— What’s the first thing you recommend companies do?
—B: First we must sit down for a considerable number of interviews to allow us to know if the readout of detected risks is correct. We have developed a certain ‘bloodhound’ sense allowing us to understand where risks are located. Our policy recommendations for individual companies are not cut/paste jobs, in order that they may come out clean if and when subjected to a criminal investigation.

— Having a risk prevention model exempts companies from liability?
—P: The law says that if the company has a well-designed, effectively-implemented crime prevention model, it will be exempt from liability. Prosecutors will determine that oversight duties have been fulfilled. Employees, managers, representatives or controlling partners may have committed a crime, but not the company. This is a way of providing indemnity from such liability.

— What sanctions might be imposed?
—B: There are four: a monetary fine, ineligibility to contract with the State, forfeiture of State subsidies and dissolution of the company.

— In their ‘investors’ page, SQM claims it has a model that complies with Law 20393. How could it be that it now faces bribery charges?
—B: If they have a model, it means that the prosecutor feels they were not implementing it adequately. Did they provide training to their directors, officials and staff?

— Do they risk forfeiting their lease on the Atacama Salt Flats with Corfo?  
—B: Yes they do. That is why they are looking for an alternative way out to avoid sanctions, by paying a certain sum and accepting disclosure of the agreement with the prosecutor’s office in a nationwide newspaper.

—Ceresita, Áridos Maggi, Constructora Pehuenche and Salmones Colbún, all slammed with bribery charges, did find alternative solutions or had fast-track court proceedings.
—P: That is because they admitted their responsibility. Above and beyond the criminal sanction, the law intends companies to pay a reputational price, and the verdict might include publishing the sanction in a nationwide newspaper. The law wants to stigmatize doing business with crooked companies.
—B: Rolling out a model takes anywhere form four months to a year. Compliance must be monitored by the prevention officer, who is appointed by and reports to the board of directors.

Source: La Segunda