Latin America Overview

Introduction

Combating co-operation through unprecedented international coordination

One would be hard-pressed to find a region that has captured the attention of anti-corruption practitioners, academics, regulators, enforcement officials and international organisations such as the Organisation for Economic Co-operation and Development (OECD) and Transparency International more than Latin America has during the past decade. The increased attention was sparked principally by the Lava Jato (Operation Car Wash) scandal and its ensuing cross-border investigations that left virtually no country in the region untouched and that sprawled across other jurisdictions around the globe. Numerous lessons emerged from Operation Car Wash, one of the most significant anti-corruption enforcement efforts in modern times. Of those, one stands out in particular: the transformative impact of effective international co-operation.

As a result of Operation Car Wash and coordination between authorities in multiple jurisdictions, Latin American authorities have cultivated a newfound appreciation of how to employ various international co-operation tools and mechanisms. The ability of prosecutors and investigators across the region to respond to transnational corruption scandals also results from their increased participation in multilateral initiatives. Inspired by these international efforts and encouraged by ever-evolving best practices and standards, practitioners in the region have conducted notable investigations by forging lasting partnerships with foreign counterparts and utilising previously ignored tools to exchange information and act on leads and evidence. These measures include making better use of financial intelligence obtained through specialist agencies and proactively forming dynamic anti-corruption law enforcement networks that allow authorities to communicate directly and exchange crucial evidence and information in real time. Furthermore, during the past decade, numerous countries in the region have enacted corporate liability frameworks to tackle large-scale wrongdoing by companies. These efforts have emboldened prosecutors and regulators and vested administrative enforcement bodies with the authority to share information more readily with foreign authorities when investigating corporate corruption. The fruits of this increased international co-operation are evident by the surge in prosecutions, assets recovered and individual convictions. In Brazil, for example, prosecutors have charged more than 900 individuals for anti-corruption crimes in the Operation Car Wash scandal alone as at late May 2019.^[2]

This chapter analyses the international co-operation instruments and mechanisms that exist across Latin American jurisdictions and discusses the evolution and efficacy of these frameworks. It also considers the origins of paradigm shifts in enforcement, and the successes and obstacles that anti-corruption authorities have encountered to date.

Mechanisms of international co-operation

Law enforcement authorities have several international co-operation tools at their disposal when conducting multi-jurisdictional corruption investigations. Countries in the region have increasingly supplemented bilateral co-operation activity with participation in multilateral efforts to root out corruption, including the OECD Anti-Bribery Convention, the Inter-American Convention Against Corruption (IACAC) and the United Nations Convention against Corruption (UNCAC).^[3] These efforts have intensified the fight against corruption and encompass innovative, expansive and informal means of collaboration, leading to an uptick in direct relationships, regular information sharing and stronger enforcement networks across Latin America.

Formal anti-corruption co-operation instruments

Historically, Latin American law enforcement authorities have sought and provided mutual legal assistance (MLA) in anti-corruption matters through formal legal channels made available by bilateral treaties and other similar instruments. Cross-jurisdictional efforts started as early as 1996 with the IACAC, which required Member States to co-operate in extradition efforts and provide mutual assistance to prosecute corruption.^[4]

If used effectively, bilateral MLA treaties can be crucial to the success of multi-jurisdictional investigations. This is particularly so in the context of corruption crimes, which are often complex in nature and require sophisticated knowledge of illicit financial flows and transactions to detect and combat criminality proactively. MLA can be overly formal and time-consuming but it is often the best way to ensure that foreign evidence is admissible in domestic proceedings.

During the past two decades, Latin American jurisdictions have gradually constructed a network of formal agreements that enable their respective authorities to provide MLA. For example, Brazil has concluded bilateral MLA treaties with Colombia, Honduras, Mexico, Panama and Peru, and a number of jurisdictions outside Latin America.^[5] Colombia has entered into MLA agreements with Argentina, Brazil, Cuba, Ecuador, Mexico, Panama, Paraguay, Peru and Venezuela, as well as some non-Latin American jurisdictions.^[6] Despite the slow evolution of MLA agreements in the region, their use became essential from 2014 as anti-corruption enforcement action surged because of major international corruption scandals.^[7]

The prosecution of several companies in connection with Operation Car Wash serves as a key example of MLA agreements working at their best. In 2017, the US Department of Justice (US DOJ), alongside the Brazilian Operation Car Wash taskforce (housed within Brazil’s Federal Public Prosecutor’s Office),^[8] coordinated resolutions in four cases under the US Foreign Corrupt Practices Act against Embraer, Rolls-Royce, Braskem and Odebrecht. In July 2017, the then Acting Assistant Attorney General for the Criminal Division of the US DOJ, Kenneth A Blanco, explained that ‘[b]y working together, Brazil and the Department not only assisted one another in gathering evidence and building the case, but made sure to credit the fines and penalties paid to each country, rather than imposing duplicative fines and penalties’.^[9] As explained by Blanco, US and Brazilian authorities assisted one another in gathering information through direct informal communications. A prosecutor or financial intelligence unit (FIU) agent, for example, could call his foreign counterpart at the beginning of an investigation to identify bank accounts of interest. The prosecutors later sought formal MLA to request evidence so that it would be admissible at trial.^[10] In the wake of the Operation Car Wash scandal, prosecutors across the region have increasingly resorted to MLA agreements not only to obtain evidence located abroad but also – and perhaps even more importantly – to recover and repatriate millions in illicit assets and criminal proceeds concealed in overseas bank accounts.^[11]

If two countries do not have an MLA treaty in place, their respective authorities may be able to provide co-operation and assistance pursuant to multilateral conventions and agreements allowing for coordination on matters relating to anti-corruption.

The IACAC, for example, targets specific corruption practices at the national level and aims to develop complex international anti-corruption regimes to facilitate cross-border co-operation.^[12] Specifically, Article 14 of the IACAC provides that ‘States Parties shall afford one another the widest measure of mutual assistance by processing requests from authorities that . . . have the power to investigate or prosecute the acts of corruption . . . and to obtain evidence and take other necessary action to facilitate legal proceedings and measures regarding the investigation or prosecution of acts of corruption’.^[13] Notably, Argentina incorporated this language in its law on international co-operation in criminal matters.^[14] The Mechanism for Follow-Up on the Implementation of the Inter-American Convention against Corruption, which oversees the monitoring of IACAC States Parties’ implementation of the Convention, does not regularly provide statistics on the number of MLA requests countries have submitted pursuant to the instrument.

The ratification of the OECD Anti-Bribery Convention strengthened the global fight against corruption, particularly by pushing Member States to criminalise bribery of foreign public officials and to introduce corporate liability for foreign bribery.^[15] The OECD Working Group on Bribery (WGB), a peer-led body composed of OECD Anti-Bribery Convention Member States, is charged with monitoring and evaluating implementation and enforcement of the Convention by Member States. All Member States undergo periodic formal peer review processes whereby their anti-corruption policies and their implementation and enforcement are evaluated by experts designated by peer Member States.^[16] Each review culminates in a final report, which is made public.^[17] Considered by Transparency International to be the ‘gold standard’ of monitoring, the WGB has brought transformational changes to Latin America’s anti-corruption legislative and enforcement landscapes. In response to WGB reviews, nearly all Latin American Member States (Argentina, Brazil, Chile, Colombia, Costa Rica, Mexico and Peru) have introduced some form of corporate liability for foreign bribery (four of which did so in the past five years). In addition to formal reviews, the WGB facilitates interdisciplinary multi-jurisdictional training programmes for enforcement authorities on investigative techniques.^[18]

Finally, the UNCAC is the most comprehensive legally binding international anti-corruption treaty and has the most Member States. The UNCAC covers both domestic and foreign bribery and promotes co-operation and information sharing, including MLA, extradition and bank secrecy.^[19] Similar to the IACAC, Article 18 of the UNCAC provides that ‘States Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings’ and includes many categories of assistance found in bilateral MLA treaties (e.g., taking evidence or statements from persons, executing searches and seizures, and identifying and tracing proceeds of crime). Latin American jurisdictions without bilateral MLA treaties use the UNCAC as a legal basis for seeking and requesting assistance, which authorities execute pursuant to domestic law allowing for non-treaty-based MLA requests. In Brazil, for example, the UNCAC has facilitated MLA extradition requests in the absence of dual criminality, as the Convention allows for extradition even when the alleged violation of law is not defined in the same manner or under similar categories across all involved jurisdictions.^[20]

Memoranda of understanding

Partly in response to the UNCAC’s mandate for facilitating MLA, some Latin American countries are codifying their co-operation efforts through memoranda of understanding (MOUs). Owing to their ad hoc nature, MOUs streamline and simplify cross-border co-operation, allowing regulators to avoid lengthy and bureaucratic processes that often delay the process of MLA requests.^[21] MOUs afford jurisdictions working with Latin American regulatory and administrative enforcement authorities an informal way of receiving assistance in the form of intelligence, procedural instructions, or data collection prior to requesting MLA.^[22] MOUs are also invaluable resources when working with jurisdictions that lack a comprehensive MLA framework.

Notably, Colombia has signed MOUs with Mexico, Chile, Costa Rica, Ecuador, Honduras, El Salvador, Uruguay and Nicaragua.^[23] In 2017, Colombia’s Superintendency of Corporations, a regulatory body charged with investigating and sanctioning legal persons for acts of bribery, concluded an MOU with Peru for the purpose of investigating transnational corruption through bilateral exchanges of evidence in as close to real time as possible.^[24] These types of agreements obviate the need for more formal MLA processes, and enable regulators to gain access to the same types of information (in the form of documents, data and files) that they would be able to obtain while carrying out their own investigations domestically. As a result, MOUs have emerged as a tool in overcoming the difficulties of cross-border investigations, and are further evidence of the ability of anti-corruption bodies in the region to adapt their activity to the evolving nature of transnational corruption.

Joint investigation teams

Joint investigation teams (JITs) allow law enforcement officials from multiple countries to carry out criminal investigations in multiple jurisdictions. Member States sign a formal agreement establishing the JIT’s purpose, duration and composition. JITs include investigators, prosecutors and occasionally judges led by the jurisdiction in which the majority of the investigative measures will take place, with seconded law enforcement officials from other countries. As with MOUs, JITs allow for greater speed than the traditional MLA process, and have the added benefit of ensuring better coordination and quality of evidence as participating investigators from different countries work hand in hand. In 2019, for example, Argentina joined a JIT with Spain and Italy to investigate an organised criminal group operating in all three countries that was accused of distributing approximately two tons of cocaine.^[25] The investigation began in November 2017 when authorities detained two individuals after discovering in their possession three suitcases containing €365,000.^[26] In December 2018, Spanish and Argentinian authorities simultaneously raided 73 homes and detained 35 individuals.^[27] The JIT was subsequently formed, and the nations together identified members of the illicit organisation and approximately US$15 million of laundered money. The JIT’s investigation involved the co-operation of more than 750 police officers across three countries.^[28] On 23 December 2019, the Federal Oral Tribunal of Salta convicted several members of the criminal organisation of transporting and storing narcotics.^[29]

JITs are still a novel concept in Latin American countries and only time will tell if the region’s anti-corruption authorities will appreciate their benefits.

Financial intelligence exchanges

The crime of corruption goes hand in hand with money laundering and other types of financial wrongdoing. For this reason, bodies such as national FIUs are essential for detecting money laundering activity and the predicate offence of bribery. FIUs are in a unique position to analyse, package and share complex financial information not only domestically, but also with their foreign counterparts.

Latin American FIUs have become more active in fighting corruption. The inter­government anti-money laundering organisation known as Financial Action Task Force has noted increases in requests and information exchanges between Latin American FIUs through various mechanisms, including the Egmont Group Secure Web and MOUs. Notably, in 2014, the FIUs of Peru, Chile, Colombia and Mexico created a co-operation framework, allowing them, among other aspects, to exchange information on cross-border transportation of currency, strategic analysis and money laundering convictions – all valuable tools for detecting and preventing corruption.^[30] Between 2014 and 2018, Peru’s FIU issued 515 foreign information requests to more than 30 countries, of which 76 were issued to Mexico, Chile and Colombia.^[31] Further, Mexico’s FIU plays an important part in anti-corruption enforcement by freezing bank accounts and providing information to prosecutors.^[32] In May 2019, account-freezing proved effective in corruption investigations against the former head of Mexico’s national oil company, Pemex, and the chairman of Mexico’s largest steelmaker, Altos Hornos de Mexico.^[33] Further, Brazil’s Counsel for Financial Activities Control referred 5,273 financial intelligence reports to law enforcement and commenced 12 money laundering and administrative actions between January and September 2019.^[34]

However, insufficient resources severely undermine regional FIU anti-corruption efforts. Mexico’s FIU operates on a budget of 7 million pesos and Guatemala’s FIU is chronically understaffed.^[35] The United States has provided financial support for training and upgraded technical infrastructure, including updated data systems, to FIUs throughout Latin America.^[36]

Law enforcement networks

Law enforcement networks regularly bring together officials to exchange ideas and experiences, and to provide real-time collaboration on cross-border investigations. One example is the Latin America and Caribbean Anti-Corruption Law Enforcement Network (LAC LEN), created in 2018 by anti-corruption authorities with the assistance of the OECD’s WGB. LAC LEN allows for informal, peer-to-peer exchanges of information and the facilitation of legal assistance.^[37] Its inaugural meeting brought together law enforcement officials and attorneys from 14 countries with representatives from the OECD, the Organization of American States, the Inter-American Development Bank and the Iberoamerican Network of Prosecutors against Corruption of the Iberoamerican Association of Public Ministries. A similar network for judges and legal authorities, the Ibero-American Network for International Legal Cooperation (IberRed), was created to optimise legal co-operation in criminal and civil matters between members of the Organization of Ibero-American States^[38] and to establish and maintain an updated information system about their different legal systems.^[39] In 2020, IberRed entered into an agreement with the European Union Agency for Criminal Justice Cooperation (Eurojust) to provide access for Member States to the Iber Secure Communication System, allowing secure and real-time communications between judges, prosecutors and central authorities throughout Latin America and Europe.^[40]

Comparing the robustness of enforcement regimes and multi-jurisdictional coordination

The level of co-operation by Latin American countries varies depending on the specific investigative and prosecutorial demands (e.g., wide-ranging scandals involving more than one jurisdiction, such as the Odebrecht investigation), as well as the commitment and operational infrastructure of law enforcement authorities. Differences in approaches, available resources and technology, and competing timelines can frustrate efforts to build strong and seamless collaboration between agencies. Countries in the region with strong cross-border corruption enforcement, such as Brazil, are characterised by expansive anti-corruption legislation, robust enforcement agencies with skilled investigators and prosecutors, and solid democratic institutions. Others, such as Colombia and Peru, are at the early stages but struggle to marshal the resources, technical capacity or political will to fully develop sustainable programmes for international anti-corruption enforcement co-operation. However, many Latin American countries practise very little international enforcement co-operation. Even when countries have agreed to MLA treaties or enacted specific legislation requiring international co-operation (such as Argentina, Chile, and Mexico), they often lack adequate resources or procedural mechanisms to fulfil their commitments efficiently and effectively. Argentina serves as a prime example, where because hundreds of cases are handled by the same investigative judge, cases sometimes expire because they have reached the end of the statute of limitations period.^[41]

Brazil

Brazilian authorities may provide MLA on the basis of a bilateral treaty, a multilateral treaty or reciprocity, with the majority of incoming and outgoing MLA requests made on the basis of bilateral treaties. The Department of Assets Recovery and International Cooperation, a branch of the Ministry of Justice and Public Security,^[42] is responsible for executing MLA agreements and coordinating Brazilian efforts in co-operating in international criminal investigations.^[43] In practice, however, the Federal Police, Federal Prosecution Service (MPF) and the Office of the Comptroller-General are the entities that regularly engage in international co-operation efforts and therefore carry out the largest number of the requests.^[44] Brazil is unique in that it publishes monthly statistical reports on requests for international legal co-operation, categorising the number of requests by type, current status and number of countries involved.

Brazil is the region’s leader in international co-operation efforts. Between the OECD Anti-Bribery Convention’s entry into force in Brazil in 2000 and 2014, Brazilian authorities had opened investigations into only three of 14 foreign bribery allegations, and had only prosecuted one foreign bribery case.^[45] However, domestic law enforcement entities have since made significant progress in responding to MLA and information requests from foreign FIUs and other foreign counterparts. The high-profile Operation Car Wash investigation has undoubtedly afforded Brazil extensive opportunities for co-operation with foreign authorities. As at 6 March 2020, the MPF reported that it had received 606 MLA requests from more than 40 countries and had sent 447 MLA requests to 61 countries in the context of Operation Car Wash.^[46] As a result, Brazilian authorities have successfully frozen or seized approximately US$450 million located in overseas bank accounts. These numbers demonstrate the immense progress that Brazilian authorities have made in the past five years and showcase the sophistication of Brazilian intelligence in identifying leads and evidence located overseas. This has been possible because of tools developed by Brazilian law enforcement to tackle bribery schemes with complex multi-jurisdictional components. In recent years, federal police and prosecutorial services have frequently resorted to instruments such as the Register for Clients of the National Financial System and the Banking Transactions Investigation System to identify illicit financial flows, beneficial ownership and other important evidence.^[47]

Colombia

Colombia’s legal framework for MLA is laid out Articles 484 to 489 of the Colombian Code of Criminal Procedure, and a number of multilateral and bilateral MLA treaties with several countries, including Argentina, Brazil, France, Mexico, Spain and the United Kingdom. If Colombia does not have an MLA treaty with a foreign country, international legal instruments such as the UNCAC and the IACAC may provide a legal basis for Colombian authorities to request and obtain crucial evidence and assistance to advance corruption investigations. Notably, Colombia data collected via MLA does not appear updated or comprehensive, according to the most recent OECD WGB report.^[48]

The Superintendency of Corporations is Colombia’s independent agency for conducting administrative investigations of legal persons in respect of acts of bribery. Colombia has taken concrete steps to enhance the Superintendency’s capacity to effectively engage in international co-operation. It has concluded an agreement with Brazil’s administrative authority in charge of enforcement against legal persons. Since 2017, the Superintendency has signed two MLA agreements for direct information exchange in transnational bribery investigations with criminal law enforcement authorities in Peru (Public Ministry) and the United Kingdom (Serious Fraud Office), and reports ‘aggressively’ pursuing the establishment of similar agreements with as many countries as possible, prioritising Latin America.^[49]

Colombian authorities are increasingly able to resort to targeted legislation, such as the revised Asset Forfeiture Law and the Transnational Corruption Act (2016), to meet specific investigative needs. These have and will continue to enhance authorities’ ability to keep up with criminality. In a recent corruption case, Colombian authorities successfully used the Asset Forfeiture Law to work with a foreign authority to seize proceeds generated in Colombia and moved to the foreign country. Additionally, Colombia has pursued numerous investigations under its Transnational Corruption Act, which creates administrative liability for corporations involved in foreign bribery.

International monitoring bodies acknowledge Colombia’s initial progress. In its most recent Colombia report, the OECD WGB stated that Colombia appeared to provide timely assistance to foreign partners. The WGB pointed to a case in which Colombian authorities executed a foreign authority’s MLA request for bank and company records within five months of receiving the request, which was no more than the time needed to obtain similar information in a domestic procedure.^[50]

Peru

Article 508(1) of the Code of Criminal Procedure (CPC) allows Peru to seek and provide MLA in criminal matters through a treaty or the principle of reciprocity, and as at 2019, Peru had engaged 20 countries in bilateral MLA treaties.^[51] If a treaty does not apply, Articles 508 to 512 and 528 to 537 of the CPC provide the legal framework.^[52] Peru’s Public Prosecutor’s Office is the central authority for MLA requests and receives additional support from the Ministry for Foreign Affairs pursuant to Article 512 of the CPC.^[53] Peru requires dual criminality for MLA requests seeking asset tracing, freezing and seizing bank accounts and criminal assets, intercepting communications, and other measures that limit individual rights, pursuant to Articles 511(1)(h) and 529(2) of the CPC.^[54] Peru is also party to the OECD Anti-Bribery Convention, the UNCAC, the IACAC, and the Inter-American Convention on Mutual Assistance in Criminal Matters.^[55]

In the past two decades, Peru has introduced various initiatives with the goal of remedying the pattern and practice of corruption that accompanied the Fujimori presidency. In 2010, the Presidency of the Council of Ministers established the High-Level Anti-Corruption Commission (CAN), which created a national anti-corruption plan operating from 2012 until 2016 with the objective of preventing and combating corruption via coordinated action. One lasting benefit of the CAN is the creation of a digital platform that enables coordination between Peruvian anti-corruption bodies via information-sharing technology.^[56]

In 2016, Peru became a full member of the OECD WGB.^[57] Peru has also committed to co-operating in joint investigations relating to the Odebrecht scandal, having signed the Brasilia Declaration on International Joint Investigations in 2017.^[58] To date, Peru has made 250 requests to Brazil and has received three from Brazil in relation to the scandal.^[59] Finally, on 1 January 2018, the Peruvian Congress enacted Law 30424, which introduces corporate liability for existing criminal offences relating to corruption, money laundering and financing of terrorism.^[60] The Law is applicable to legal entities bribing public servants or officials domestically or internationally.^[61]

Argentina

Argentina collaborates with foreign authorities in investigations through bilateral, regional and multilateral treaties. As of 2017, bilateral MLA treaties are in force with 16 countries, with more being negotiated.^[62] Argentina has received requests for MLA under the OECD Anti-Bribery Convention, the UNCAC and the IACAC. Other applicable multilateral treaties include Law No. 26004 on the Mutual Assistance Agreement in Criminal Matters of Mercosur (Argentina, Brazil, Paraguay, Uruguay, Bolivia and Chile) and Law No. 26139 on the Inter-American Convention on Mutual Legal Assistance in Criminal Matters.^[63] For countries that do not have a treaty, Argentina ‘shall afford the widest possible measure of assistance’ under Law No. 24767 on International Co-operation in Criminal Matters on condition of reciprocity.^[64] This Law also regulates extradition and other forms of assistance in criminal investigations.

Under Argentine law, the country can grant coercive measures pursuant to an MLA request (e.g., search and seizure, wiretapping and surveillance) if the underlying conduct is a crime in both participating states.^[65] This is subject to restrictions regarding measures that may violate individual privacy rights guaranteed by Argentina. Argentina’s MLA is limited to criminal actions; it cannot provide MLA for use in civil or administrative liability against legal persons for foreign bribery.^[66] In March 2018, Argentina passed Law No. 27401, establishing criminal liability for corporations that have bribed domestic or foreign officials, with protection against liability when self-reporting.^[67]

Numerous challenges arise in requesting MLA from Argentina. First, requests are often significantly delayed: the average time for completing incoming requests is 4.6 months. As of July 2019, Argentina had 83 outstanding outgoing MLA requests in corruption cases, some of which came from five foreign bribery investigations that opened in 2016.^[68] Further, investigative judges responsible for leading foreign bribery investigations are under-resourced; there are few judges available to handle these types of cases. In Buenos Aires, 12 investigative judges handle all cases under federal jurisdiction – one judge disclosed during an OECD investigation that he has 400 to 500 ongoing cases in addition to a complex economic foreign bribery case.^[69] Argentina nevertheless has resources available in pursuing MLA concerns. It is a member of both IberRed and the Hemispheric Network for Legal Cooperation on Criminal Matters (under the Organization of American States).^[70]

Chile

While Chile has not enacted any law governing international co-operation, a few procedural rules regulate MLA agreements and are applied in the execution of MLA.^[71] Chile mainly requests international co-operation with Latin American countries, relying most frequently on Argentina, Peru, Colombia and Bolivia.^[72] Chile’s anti-corruption statute, Law No. 19913, creates the Financial Analysis Unit and modifies various provisions concerning money laundering in view of their importance in international affairs. Under Article Two, the Unit’s function is to share information with international counterparts.^[73] Chile also has national legislation condemning the bribery of domestic and foreign public officials.^[74]

According to a recent OECD report, Chile’s anti-corruption measures have improved in recent years.^[75] Starting in 2016, Chilean tax authorities have collaborated with the US Securities and Exchange Commission to investigate illicit payments made by the Chilean Chemical and Mining Society, which led to various settlements with the US government.^[76] Additionally, in November 2016, the Chilean Court of Appeal convicted Victor Lizarraga for bribing a Korean adviser of a military attaché for introductions to Korean companies seeking contracts from the Chilean military.^[77] The conviction marked Chile’s first foreign bribery conviction against a natural person.^[78] Despite having concluded two successful bribery enforcement actions and reopening cases the OECD deemed insufficiently tried, the OECD still recommended that Chile ‘(a) ensure that it assess credible allegations of foreign bribery when they surface, and seriously investigate this offence in Chile and abroad; and (b) use proactive steps to gather information from diverse sources to increase sources of allegations and enhance investigations’.^[79] Although Chile has enjoyed positive experiences in obtaining evidence from foreign companies for domestic suits or in requesting MLA from other states, the process of obtaining MLA in Chile has proven to be cumbersome, resulting in unnecessary delay and rendering Chile’s success with MLA one-sided.^[80]

Mexico

Mexico is a party to the UNCAC and the IACAC, and boasts the largest number of international treaty agreements involving MLA: 30 MLA treaties and 33 extradition treaties.^[81] It provides MLA without an applicable treaty where there is reciprocity and dual criminality under its International Extradition Law (Articles 3, 5, 6, 15 and 16).^[82] Under the United States-Mexico-Canada Agreement’s (USMCA) anti-corruption chapter on enforcement co-operation, signatories recognise the importance of co-operation, coordination and exchange of information among their respective anti-corruption law enforcement agencies to foster effective measures to prevent, detect and deter bribery and corruption. The USMCA also imposes enhanced anti-corruption requirements on signatory parties. These focus on strengthening international co-operation between law enforcement agencies, and require each signatory country to criminalise embezzlement and misappropriation of funds by public officials to the extent that such conduct affects international trade or investment.

Despite having many bilateral MLA agreements, meaningful precedents of cases in which Mexican enforcers have co-operated with peers in other jurisdictions to crack down on cross-border corruption cases are limited. MLA requests are governed by the National Code of Criminal Procedure, and the Directorate of International Legal Assistance is responsible for receiving, forwarding and overseeing MLA requests.^[83] MLA requests experience significant delays in Mexico because of bureaucratic procedures, with an average waiting time of approximately eight to nine months.^[84] The development of institutional capabilities is perhaps Mexico’s greatest challenge for anti-corruption enforcement.^[85] Domestic implementation of the National Anti-corruption System has been slow, leaving foreign jurisdictions with an underdeveloped partner in Mexico.^[86]

In the Odebrecht investigations, Mexico has not been able to bring to justice any key public officers or private parties. Additionally, several cases involve consent decrees and similar agreements between corporations and individuals and US authorities for corruption involving Mexican government agencies, without Mexican enforcement.^[87] Major investigations in the past, including the recently settled US DOJ investigation of Walmart, have been led by the US DOJ with almost no participation by Mexico counterparts.

However, Mexico has taken action that suggests improvement in international co-operation. It has hosted international summits concerning international co-operation in detecting and investigating foreign bribery. Further, Mexican authorities are developing an electronic case management system called [email protected], which will systematise all MLA procedures and processes. In June 2016, Mexico amended Articles 421 and 422 of the National Code of Criminal Procedure to ‘provide for the autonomous liability of legal and natural persons for foreign bribery, and to allow legal persons to be held liable for criminal offences when they fail to comply with due controls in their organizations’.^[88] The General Law on Administrative Responsibility, enacted in July 2017, introduces corporate administrative liability of public officials and private natural and legal persons for ‘serious’ and ‘non-serious’ administrative offences, with Articles 4, 24 and 25 specifically creating corporate liability for such offences.

Conclusion

International co-operation has become a valuable enforcement tool in Latin America with various formal and informal mechanisms available to facilitate it. During the past two decades, Latin American countries have increased participation in multilateral initiatives designed to combat corruption and engaged the use of MLA, MOUs and JITs across several jurisdictions. These engagements often result in the adoption of established and successful international methods in investigating bribery and other forms of corruption.

The jurisdictions discussed have seen such changes at the domestic level reflected in an increase in the cross-jurisdictional exchange of information, the development of electronic tools and databases to facilitate carrying out investigations generally, and substantive changes to bribery and anti-corruption laws. Although countries in the region differ in the extent to which they rely on tools to address corruption, the general trend of reliance is moving upwards. Understanding the coordinative practices of Latin American jurisdictions facilitates the investigative process and helps with managing expectations throughout the life of an investigation.

Footnotes