The FCPA in Latin America

This article was republished with permission from FCPAméricas Blog, for which Matteson Ellis is founder, editor and regular contributor.

In his keynote address at the 2016 ACI International Conference on the Foreign Corrupt Practices Act, the Director of the SEC’s Enforcement Division, Andrew Ceresney, said: “This is my fourth year here as Director of Enforcement, and a tremendous amount has happened in FCPA enforcement over the last four years … During this time, we have seen tremendous improvement in FCPA awareness and compliance both in the United States and abroad.”

Based on the results of the 2016 Latin America Corruption Survey, Mr. Ceresney’s assertions are true in Latin America. A growing number of respondents in the region say they are aware of the FCPA (in a prior post FCPAméricas discussed growing compliance activity in the region). The survey results are based on information provided by more than 630 respondents across 19 countries in the Americas.

In particular, almost three-quarters of respondents (72 percent) in the region are familiar with the FCPA, up from 65 percent in 2012. Not surprisingly, 95 percent of respondents from U.S. multinationals or companies publicly listed in the United States report that they are very familiar with the FCPA.

Perhaps more remarkable, of respondents who are apparently not subject to the FCPA (because they do not work in the United States, their companies are not publicly traded in the United States or they do not work for an affiliate of a U.S. multinational company), 23 percent indicate they are very familiar with the FCPA and 46 percent indicate they are somewhat familiar with the FCPA. In other words, almost three-quarters of these respondents have some familiarity with the FCPA, demonstrating the notable impact that the FCPA is having on business outside of its jurisdictional reach, specifically in Latin America.

Similarly, 58 percent of respondents from local/regional companies are somewhat or very familiar with the FCPA, up from 47 percent in 2012. Among non-U.S. multinational companies, 54 percent of respondents say they are very familiar, as opposed to somewhat familiar, with the FCPA, a slight increase from 2012, while only 15 percent (down from 24 percent) are not at all familiar with the law.

The countries with the least FCPA familiarity are Nicaragua (71 percent not at all familiar), Venezuela (50 percent), Paraguay (50 percent), Bolivia (47 percent), Chile (44 percent) and Guatemala (44 percent). Those most familiar, perhaps due in part to recent significant, highly publicized FCPA investigations involving these countries, are Peru (100 percent), Brazil (90 percent), Colombia (87 percent) and Mexico (87 percent).

The survey also tested awareness of the U.K. Bribery Act in Latin America. As in 2012, the FCPA remains more familiar to respondents than the UKBA. However, there has been a slight increase in familiarity with the UKBA over the past four years (from 41 percent in 2012 to 49 percent in 2016). Sixty-eight percent of respondents from public companies are at least somewhat familiar with the UKBA (up from 58 percent in 2012), and 62 percent of respondents from private companies are not at all familiar with the law (down from 70 percent in 2012).

Respondents from the United States and Brazil show strong familiarity with the UKBA (82 percent and 81 percent, respectively), while respondents from most other countries register low levels of familiarity. This might be due to the fact that UK investment in the United States and Brazil – and vice versa – has been much higher than across the other countries surveyed.

The opinions expressed in this post are those of the author in his or her individual capacity and do not necessarily represent the views of anyone else, including the entities with which the author is affiliated, the author’s employers, other contributors, FCPAméricas or its advertisers. The information in the FCPAméricas blog is intended for public discussion and educational purposes only. It is not intended to provide legal advice to its readers and does not create an attorney-client relationship. It does not seek to describe or convey the quality of legal services. FCPAméricas encourages readers to seek qualified legal counsel regarding anti-corruption laws or any other legal issue. FCPAméricas gives permission to link, post, distribute or reference this article for any lawful purpose, provided attribution is made to the author and to FCPAméricas LLC.

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Matteson Ellis

Matteson Ellis serves as Special Counsel to the FCPA and International Anti-Corruption practice group of Miller & Chevalier Chartered in Washington, DC.  He is also founder and principal of Matteson Ellis Law PLLC, a law firm focusing on FCPA compliance and enforcement. He has extensive experience in a broad range of international anti-corruption areas. Previously, he worked with the anti-corruption and anti-fraud investigations and sanctions proceedings unit at The World Bank.

Mr. Ellis has helped build compliance programs associated with some of the largest FCPA settlements to date; performed internal investigations in more than 20 countries throughout the Americas, Asia, Europe and Africa considered “high corruption risk” by international monitoring organizations; investigated fraud and corruption and supported administrative sanctions and debarment proceedings for The World Bank and The Inter-American Development Bank; and is fluent in Spanish and Portuguese.

Mr. Ellis focuses particularly on the Americas, having spent several years in the region working for a Fortune 50 multinational corporation and a government ethics watchdog group. He regularly speaks on corruption matters throughout the region and is editor of the FCPAméricas Blog.

He has worked with every facet of FCPA enforcement and compliance, including legal analysis, internal investigations, third party due diligence, transactional due diligence, anti-corruption policy drafting, compliance training, compliance audits, corruption risk assessments, voluntary disclosures to the U.S. government and resolutions with the U.S. government. He has conducted anti-corruption enforcement and compliance work in the following sectors: agriculture, construction, defense, energy/oil and gas, engineering, financial services, medical devices, mining, pharmaceuticals, gaming, roads/infrastructure and technology.

Mr. Ellis received his law degree, cum laude, from Georgetown University Law Center, his masters in foreign affairs from Georgetown’s School of Foreign Service, and his B.A. from Dartmouth College. He co-founded and serves as chairman of the board of The School for Ethics and Global Leadership in Washington, D.C. He is a member of the District of Columbia, Texas, New York, and New Jersey bar associations.

Mr. Ellis is also author of The FCPA in Latin America: Common Corruption Risks and Effective Compliance Strategies for the Region.

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