Colombia

Leonor María Paulina Riveros Dueñ[email protected] is no secret that illegal armed groups have historically relied on a deplorable method of financing their criminal activities by coercing businesspeople into making payments under the explicit threat of severe consequences should they refuse. Such threats were, in many cases, carried out, including through acts of homicide.Unfortunately, the situation has worsened in a context in which 2025 is expected to be the worst year of the past decade in terms of the humanitarian consequences of the armed conflict in Colombia.[1] For companies, this is not merely a risk arising from past events, but one that stems from both the past and the present.The judicial response to this phenomenon has increasingly focused on prosecuting corporate executives for the offences of criminal conspiracy (concierto para delinquir) or financing terrorism, as applicable; or, even more concerning, for crimes committed by the illegal armed groups themselves under the doctrine of indirect perpetration through organised structures of power (autoría mediata en aparatos organizados de poder).The three jurisdictions dealing with these matters in Colombia—Justice and Peace, the Ordinary Criminal Justice System, and the Special Jurisdiction for Peace (JEP)—have progressively reinforced their respective approaches. Within the Justice and Peace jurisdiction, businesspeople are regarded as indirect perpetrators of crimes committed by armed groups, carrying the same criminal consequences as the direct perpetrators, based on the alleged functional support they provided to those organisations. Within the ordinary criminal justice system, criminal liability has been attributed to corporate executives on the grounds that they failed to report acts of extortion. As a result, members of boards of directors, chief executive officers, comptrollers and heads of security have been convicted of criminal conspiracy, as illustrated by the Chiquita Brands case. Meanwhile, the JEP opened Macro Case No. 8 – "Crimes committed by members of the public security forces, other state agents, or in association with paramilitary groups or civilian third parties." Through this decision, the JEP shifted from prioritising cases based on criminal conduct to prioritising them based on the actors involved. In doing so, it seeks to address what it considers to have been a criminal network involving members of the public security forces, other state agents, civilian third parties and paramilitary groups, once again relying on the doctrine of indirect perpetration through organised structures of power. To date, Colombian courts have rejected the traditional defence of irresistible duress, a legal doctrine which, in our view, clearly applies to these circumstances.As can be seen, the situation is exceptionally complex for corporate executives who were compelled to make payments to illegal armed groups, even where such payments were made under extortionate circumstances. Consequently, moving from the position of being victims of extortion to facing potential criminal liability for the most serious crimes against humanity is a matter of profound significance, both for those who found themselves in such unfortunate circumstances and for Colombian society as a whole.There is little doubt that judicial decisions of this nature will have an impact on Colombia's economic development and on incentives for investment. Unfortunately, the armed conflict in Colombia continues to intensify. Against this backdrop, the judiciary faces the considerable challenge of determining the appropriate legal treatment for such a complex situation. Business leaders, for their part, must carefully assess their exposure and be prepared for potential proceedings before the courts.

Andrés Eduardo Jiménez [email protected] February 2025, shortly after the beginning of President Trump's second administration, the United States Government issued an Executive Order suspending the initiation of new investigations by the Department of Justice (DOJ) under the Foreign Corrupt Practices Act (FCPA).A misunderstanding of both the Executive Order and the FCPA itself led many people—including some legal and compliance professionals—to claim that the FCPA had effectively come to an end or that U.S. companies now had a licence to engage in corrupt practices. Nothing could be further from the truth.What the Executive Order actually provided was that the DOJ should issue new guidance governing the initiation of FCPA investigations, and that, until such guidance was issued, the commencement of new investigations would remain suspended. That pause came to an end on 9 June 2025, when the new enforcement guidelines were released.The first point worth highlighting is that the new guidelines do not alter the statutory provisions of the FCPA that establish the DOJ's jurisdiction, including jurisdiction over U.S. issuers, U.S. legal entities and individuals, and the applicable territorial jurisdiction principles.What the guidelines do change is the type of cases that will receive the DOJ's attention under the current administration. The new priorities introduce organised crime and geopolitical considerations that had not previously been incorporated into the assessment of enforcement risks. This article highlights three significant developments arising from the U.S. Government's new criminal enforcement priorities.The first major development introduced by the 9 June 2025 guidelines is that, under the current administration, the FCPA will be used as a tool to combat cartels and transnational criminal organisations. According to the guidance, where such a connection is absent, investigations are unlikely to receive the same level of attention from the DOJ.The second significant development relates to U.S. national security. The guidelines identify critical minerals, deep-water ports, and other strategic infrastructure or critical assets as key sectors in which U.S. companies should be able to compete and secure business opportunities. The FCPA will therefore be used as a tool to address national security threats arising from the bribery of foreign public officials involving critical infrastructure or strategic assets.The third notable development is that prosecutors handling FCPA investigations are instructed to consider the likelihood—or lack thereof—that local authorities are both willing and able to investigate and prosecute the same conduct within their own jurisdictions.Why are these developments relevant for Colombian companies? It is evident that, after Mexico, Colombia remains a significant area of interest for the United States because of the presence of transnational criminal organisations that are priorities for U.S. law enforcement. Many large companies operate in regions far from the country's major urban centres, where criminal organisations continue to exert various forms of pressure on businesses.The FCPA's new approach introduces additional risk factors that companies should incorporate into their compliance risk identification and management processes. Failing to consider these new dimensions may prove extremely costly if those risks ultimately materialise.