Thursday, May 4, 2017

ISO 19600, BEST GUIDELINE FOR INTERNATIONAL COMPLIANCE MANAGEMENT

There is no doubt that International Compliance may be a headache due to several instruments.
- UNITED NATIONS:
• Global Compact’s 10th principle against corruption;
• The United Nations Convention against Corruption (UNCAC);

- OECD:
• Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1999);
• Revised Recommendation on Combating Bribery in International Business Transactions (1997);
• Guidelines for Multinational Enterprises (2000)

-EUROPEAN STANDARDS:
• Council of Europe Civil Law Convention on Corruption (1999)
• Council of Europe Criminal Law Convention on Corruption (1999)
• The European Union Convention on the Fight Against Corruption Involving Officials of the European Communities or Officials of Member States (1997).

AMERICA:
• Organisation of American States Inter‐American Convention Against Corruption(1996).

AFRICA:
• African Union Convention on Preventing and Combating Corruption and Related Offences(2002).

INTERNATIONAL CIVIL SOCIETY:
• Transparency International’s Business Principles for Countering Bribery;
• International Chamber of Commerce:
– Rules of Conduct on Extortion and Bribery in International Business Transactions (1977, 1996, 1999, 2005)
– Fighting Corruption: A Corporate Practices Manual.

NATIONAL‐LEVEL
• United States Sentencing Guidelines’ 7 Elements of an Effective Compliance Program;
• the US Department of Justice’s Resource Guide to the U.S. Foreign Corrupt Practices Act;
• the United Kingdom Bribery Act 2010;
• the UK Ministry of Justice’s Guidance on the United Kingdom Bribery Act.

PRIVATE INITIATIVES:
• International Council on Mining and Metals Sustainable Development Charter, Ten Principles
• UNICORN, Trade Union Anti‐Corruption Network.
• The Extractive Industry Transparency Initiative.
• Healthcare compliance initiatives.

How to deal with all these instruments? On December 2014 ISO released the best alternative for Multinational companies to comply with all kind of local and international regulations: the ISO 19600. ISO 19600 is based on AS 3806, a Standard developed in Australia. AS 3806 was originally created in 1998 following a request from the Australian Competition and Consumer Commission (ACCC). It was updated in 2006 and adopts a ‘principles approach’ to compliance, based on four key aspects of compliance being: commitment; implementation; monitoring and measuring; and continual improvement. It was almost on time due to increasing regulations globally as mentioned before. Regulatory environment changes, leading to new and challenging influences on an entity. There is no way to manage a compliance program if it is not flexible enough to adapt to current and future changes. ISO 19600 states that ‘in a number of jurisdictions, the courts have considered an organisation’s commitment to compliance through its compliance management system when determining the appropriate penalty to be imposed for contravention of relevant laws’ Multinational companies must use a compliance framework to develop any specific program locally or internationally. The framework could be used to mitigate any potential penalties handed down by regulators or the courts.ISO 19600 is a flexible guideline containing no normative references. It provides recommendations based on the principles of good governance, flexibility, proportionality, transparency and sustainability. ISO 19600 covers all areas of compliance: anti-corruption, anti-competition, anti-money laundering, export control, data privacy. It is designed to provide guidance for establishing, developing, implementing, evaluating,maintaining and improving a compliance management program. The guidelines are applicable to all types of organizations, irrespective of size, industry, risk exposure or global reach. Multinational companies and non-multinationals have had difficulty to decide which compliance requirements are appropriate and capable of serving as good indicators of a functioning compliance program. Now, the International Standardisation Organisation's (ISO's) may fulfill all these needs. June 2015

Wednesday, October 22, 2008

EXPATRIATES

HIRING EXPATRIATES

05/23/2007

Expatriates contracts are subject to certain limits settled down by law and should comply with an specific procedure.

Limits.-

It is an obligation of the local company which hires foreign personnel to match with the limitations imposed by law as follows:

n Number of foreign workers : Local company will only be able to hire foreign personnel up to 20% of total payroll;

n Salaries : Total salaries of foreign workers can not excess of 30% of the total payroll’s salaries.

A local company can request to discharge these limitations in the following cases :specialized technician and general managers and those who will come to work due to an agreement signed with government agencies.

Requirements.-

All foreigners should credit its professional activity or specialization by attaching all University’s certification and work experience. These documents should come duly legalized by Peruvian Consulate from the foreigner’s country.

Procedure.-

Work Contract procedure .-

The foreigner has to sign a contract, which has to be authorized by the Ministry of Work and Social Promotion. This contract should include some compulsory conditions which are not applied to contracts for local workers . These are to train the national personnel in the same occupation; the employer's commitment of transporting back to its country the foreign worker and the members of its family . certain other clauses are convenient to add for tax reasons.

Certain cases have settled down in which it is not necessary the approval of the work contract taken place with foreigner, such as in the case of the foreigner with Peruvian spouse, ascendancies, descendants or Peruvian siblings. Also, in the case that of a foreign investor with a permanent investment , among others. These foreigners are governed by the same norms of the Peruvian workers.

The work contract is approved during the first 5 labor days counting from the day that all necessary documents have been filed to the Ministry of labor. Documents to be attached to the contracty are those which certifies education and work experience duly legalized in the Peruvian consulate of the country of the foreign worker.

Immigration procedure.-

Once the contract is signed it is necessary to request a Migratory qualification which is given by Immigration authorities. It is very important to keep in mind that a foreign worker can not be included in the payroll if the resident visa has not been issued.

To obtain this migratory qualification, the foreigner ´s documentation should be filed before the Immigration authorities . If he is already in Perú he had to have entered the territory with a Business visa, NOT a TOURIST ViSA, then he can request what is so called CHANGE OF MIGRATORY QUALITY, which means that its Business Visa will be changed to a Resident Visa.

This is the usual and more convenient procedure.

Once approved the Change of Migratory Quality to a resident visa , the foreigner will be able to begin working in the country and an identity card will be issued .


http://www.estudiocalle.com

Friday, October 10, 2008

Debt collection in Peru

Debt collection in Peru

By Gonzalo Calle

If you are doing business in Peru or planning to do it, here you have some information and advises which could help you to decide the most secure way to do it.

If your client tells you that issuing a letter of credit in Peru is very expensive, you have to believe him because it is certainly true. Other alternatives, however, requires that you are aware of its consequences. One of the usual and inexpensive alternative is to issue a Promissory Note, to be signed in Peru the most suitable are : Letra de Cambio and Pagaré.

When you use this alternative you have to take care about the following:

1. Some companies requires its Peruvian client to sign a contract where it establishes jurisdiction of foreign courts. That will not be advisable since in that sense you probably will not able to execute the Promissory Note in Peru. Besides, you will have to seizure or get a lien on assets which for sure are located in Peru.

2. Promissory Notes in Peru are enforceable only if they are issued according to law, so it is not a good idea to issue it according to a foreign country regulation. Besides, in order to avoid misunderstanding it is also better to issue it in Spanish.

3. It is better to require your client a guarantor who should sign also the Promissory Note. If the guarantor or your client is not a company be sure to get its wife’s signature too, since law requires that, if you will seize some asset or goods which belongs to the couple.

4. Some Promissory Notes , when payment time is over, requires to be presented before a Notary public and others do not (according to a new law). Therefore keep in mind to issue it without this requirement since you can lose one of its most important legal effect of the Promissory Note if you do not fulfill this requirement on time.

5. When you suit someone in Peru you have to look first where the Defendant is located since the judge of that location is the only empowered to process him. Lima is the capital city and if your client’s address is located here, then you will not have problems to find all necessary conditions to collect your debt ( fast communication; law firms, clerical people; agents; bilingual personnel etc) as you have in major cities; however, the Defendant is located outside Lima, then you could face some problems to deal with finding the best resources.

Therefore, the best way to deal with this problem is to sign with your client a short contract where both companies agree that all legal problems should be solved by judges and Courts located in Lima.

5. Normally, a collection debt, before filing a law suit, is carried out by lawyers or law firms, if you do not have an agent or representative in Peru. Fees are establish as a percentage of total debt to be recovered. If a law suit is filed the same rate applies but some times fix fee is agreed if the case requires some special time to evaluate it or to give its opinion.

6. A law suit in Peru normally lasts more than what is established in the law. A process, can last, on average, 12 months. It will depend if the case is quite clear or not, if the Defendant has some argument against the plaintiff or finally according to the judge’s work load. Sometimes an extra-trial arrangement could be advisable.

7. Any law suit has certain judicial fees and costs to bare. A law suit, in general speaking, is not expensive. However, when you want to seize some asset by a judge’s order you have to pay a special tariff according to its value. For instances: a seizure which amounts U.S. $ 280,000 or more requires to pay a tariff of U.S. $ 1,000.00 .

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Incorporation - Check list

Tax impact on Payroll