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By Úrsula Cortés Gutiérrez & Juan Prado Bustamante
Llona & Bustamante Abogados
Peru

According to our Peruvian economic model, which is guaranteed by our Constitution and based on recognition by the state of the coexistence of a diverse variety of businesses laid on legal framework characterized by the promotion and protection of private property, business freedom, free competition, and private investment from both, national and foreign investors in various productive sectors.

The new government is focusing on improving legislations for these areas in order to renovated the state apparatus and streamlined operations seeking to be more attractive to foreign private investments. Also, in the previous year, we can find progressive promulgation of legislation to prevent crimes of corruption and increase the transparency of state expenditure.

Perú has a protective legal framework for foreign investments, which encourages the absence of discrimination between foreign and domestic investments, allowing international currencies to be used, as well as the possibility that legal stability agreements may be signed with the state in order to guarantee the protection of investments against regulatory changes that may be made over time and that could affect investments.

According with the world context business, the Peruvian government has promulgated laws to fight corruption.  With the Legislative Decree Nº 1352 major obligations have been implemented to prevent crimes related to corruption and money laundering, applicable to private law entities, legal persons are administratively liable for offences related to corruption and money laundering committed on their behalf or for their benefit, directly or indirectly by managers, directors, legal representatives or employees. Also, Legislative Decree Nº 1341,  amend  the State Contracting Law which bans companies that have been involved in corruption or bribery cases in other countries from contracting with the State.

Furthermore, in terms of regulations of companies by the Law N° 30424 which came into effect on January 2018,  implemented the liability of legal persons for corrupt practices. The law applies to legal persons whose shareholders, directors, managers, legal representatives, attorneys or natural persons under the control of a company  engage in practices such as bribery, money laundering or otherwise possessing or transporting money obtained from illegal sources.

As for the sanctions, these may range from the applications of fines of no less than double of the benefit obtained from the bribe to the dissolution of the company itself.  In order for companies to be exempted and released from criminal liability for the commission of the crimes mentioned above, companies must implement in its organizations, prior to the commission of the crimes, a Prevention Model which consist measures of vigilance and control to prevent crimes or reduce the risk for its commissions. This model of prevention must be adequate to what is established by law and is subject to evaluation and control of the Superintendence of Security Markets.

Notwithstanding the above, and even thought companies are not enforced to hold a criminal prevention model in order to develop its activities in Peru, it is highly recommended to implement and enforce said model in order to exclude company’s responsibility for criminal acts executed by its employees or related persons besides the law.