Colombia

Dentons has advised Bank Gospodarstwa Krajowego (BGK), the Polish development bank, on a long-term investment loan of up to US$60 million granted to the Molo Group, owned by the Slominski family. The financing will be used to build a hotel complex with 251 rooms and suites on Providenciales, the main island of the Turks and Caicos archipelago in the Caribbean. The buildings will be constructed from equipment and modules manufactured in Poland. “It has been a great pleasure and satisfaction to assist BGK with this prestigious financing transaction, supporting the expansion of Molo Group in their largest investment to date. This project not only promotes Polish exports but also features exceptional hotel developments in some of the most stunning locations in the Caribbean”, said Tomasz Zwoliński, partner in the Banking and Finance practice in Warsaw. The complex includes two modular hotels: the 4-star boutique Indigo hotel and the 5-star Kimpton hotel. Both brands are owned by the international IHG group. The Indigo hotel is scheduled for completion by the end of 2025, while the Kimpton is scheduled for completion in the first half of 2027. Tomasz Zwoliński supervised and led the cross-border project, advising on English and Polish law matters related to preparing, negotiating and signing the finance documents and securities, which covered five jurisdictions and involved collateral and mechanisms related to hurricane risk. He was supported by Jakub Zienkiewicz (counsel) and Kamil Bator (associate) from the Banking and Finance team in Warsaw. The transaction team also included partner Babette Märzheuser-Wood, Global Head of the Franchise Group, and Agnieszka Nagórska-Kordeczka (counsel), who advised on hotel franchise agreements. Dentons worked alongside teams from Griffiths & Partners, who served as Turks and Caicos counsel, and Massiah Law, acting as Gibraltar law counsel, both members of the Nextlaw referral network. About Dentons Across over 80 countries, Dentons helps you grow, protect, operate and finance your organization by providing uniquely global and deeply local legal solutions. Polycentric, purpose-driven and committed to inclusion, diversity, equity and sustainability, we focus on what matters most to you. dentons.com Media contact Lidia Adamczyk Communications, Marketing & Business Development Manager +48 513 045 352 [email protected]  

Colombian law firm Pinilla, González & Prieto Abogados announced the appointment of Natalia Álvarez as the new director of the Environmental Law and Public Services practice, after serving as a lawyer in this same area for 9 years. Natalia Álvarez is a lawyer from the Sergio Arboleda University, and has a master’s degree in environmental law from the Complutense University (Spain). She has worked for almost a decade as an associate attorney in the environmental area of ​​PGP and assumed the direction of this practice since May. Natalia also has experience as a researcher, teacher and consultant for international organizations such as the IUCN (International Union for Conservation of Nature). “In addition to strengthening relationships with our current clients, who are the pillar of our work, and whom I deeply thank for their trust, in this new stage we will focus on opening new doors and building alliances with a global perspective that includes sustainability as a central axis, maintaining our essence in urban environmental law and making a difference in public services advice in which we have solid experience and a track record,” says Álvarez. PGP's environmental practice has extensive experience in sectors such as infrastructure, construction, pharmaceuticals, floriculture, agribusiness, energy, mining and telecommunications, among others, integrating sustainability and responsibility into business development from a preventive approach. Among its specialties are the structuring of the environmental component in urban projects, the proper management of water resources, and obtaining environmental licenses, permits and authorizations in different activities and projects that may impact natural resources. Another of Natalia Álvarez's objectives will be to participate in discussion, formulation and adoption of public policies and environmental standards, to monitor the proliferation of regulations that impact various economic sectors in the country. “I consider this stage as an opportunity to reaffirm our commitment to continue building relationships based on solid and responsible results, providing a strategic vision to consolidate the firm as a leader in environmental legal solutions. I assume this commitment with great enthusiasm, and I am proud to lead a committed team that shares a clear vision of the importance of integrating sustainability, social impact and innovation with economic development seeking a positive impact in each project we undertake,” concludes the new director.  

Juan David Bazzani MontoyaManaging [email protected]'s National Tax and Customs Directorate (DIAN) has launched an aggressive campaign aimed at ensuring that taxpayers who fail to pay their taxes are subjected to criminal prosecution. This is an unfortunate strategy that places businesspeople in a more discreditable position than some of the most serious criminals in the country.A concerning legal theory has begun to gain traction: that the mere failure to pay taxes is sufficient to justify criminal charges for tax offences. This position should be firmly rejected, as it disregards a longstanding principle of criminal law doctrine that unequivocally prohibits strict liability.From the perspective of criminal law, the existence of a criminal offence requires both an objective and a subjective element of the offence. In other words, it is not enough to establish the objective conduct—which, in this context, would be the failure to pay a tax obligation. It is also necessary to prove the subjective element, namely that the individual acted with criminal intent (dolo).An official tax assessment issued by the DIAN, or a report identifying the tax periods in which a particular tax was not paid, is not sufficient on its own to conclude that a criminal offence has been committed. If the Prosecutor's Office were to bring charges based solely on such evidence, the case would almost certainly result in an acquittal.The Colombian Supreme Court of Justice has adopted a similar approach in relation to the offence of possession of controlled substances. In that context, the Court has held that "the isolated act of carrying a controlled substance is, in itself, atypical unless accompanied by the specific purpose [of trafficking]."1 According to the Court, "there is an implicit subjective element within the criminal offence, requiring verification of the carrier's intention, namely whether the purpose is personal use or distribution and trafficking."2A clear parallel can be drawn with tax offences. Criminal law does not punish the mere omission of paying taxes, since that conduct is already subject to administrative sanctions. Rather, criminal liability arises only where the failure to fulfil a tax obligation is accompanied by an underlying intention to defraud the tax authorities.Readers may wonder why, if this principle is so clear, there is little specific case law addressing the issue. The explanation lies in a practical feature of Colombian criminal procedure. Tax offences generally allow the criminal proceedings to be terminated once the outstanding tax obligation has been fully paid. Consequently, taxpayers who are able to extinguish the criminal action through payment will almost invariably choose that course rather than pursuing lengthy litigation that could establish judicial precedent. As a result, very few cases reach the Supreme Court for review. Nevertheless, this does not alter the underlying legal principle, and should such a case eventually reach the Court, it should, in our view, be decided consistently with the approach outlined above.This is precisely where criminal defence lawyers play a critical role in advising clients on tax-related criminal matters. Such cases extend well beyond the accounting verification of whether taxes have been paid. Once a matter enters the realm of criminal law, it is the principles and safeguards of criminal law that must govern the proceedings.References1.Colombian Supreme Court of Justice, Criminal Chamber, Judgment SP025-2019.2.Ibid.

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.