Riveros Bazzani Abogados

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.

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 Jimé[email protected] the enactment of Law 1778 of 2016, which established rules on the liability of legal entities for transnational bribery, Colombia introduced an administrative sanctions regime for companies as an alternative to recognizing criminal liability for legal entities.Subsequently, Law 2195 of 2022 expanded the scope of administrative liability for legal entities to include acts of domestic corruption, extending the regime to other offences against public administration, environmental crimes, offences against the economic and social order, terrorism financing, and offences provided for under Law 1474 of 2011.The law establishes three conditions for corporate liability to arise: (i) a final criminal conviction or a final opportunity principle agreement involving a director, officer or employee of the legal entity for any of the offences listed above; (ii) the legal entity must have obtained a benefit from the unlawful conduct; and (iii) the company must have consented to or tolerated the conduct through action or omission, taking into account the effectiveness of its risk management and compliance controls.On 18 December 2025, the Colombian Superintendence of Companies published for public consultation a draft External Circular intended to replace the current Legal Basic Circular in its entirety. As of March 2026, the final version of the regulation had not yet been issued.One of the most significant changes proposed is the consolidation into a single chapter of the provisions governing anti-money laundering compliance—currently regulated under Chapter X (SAGRILAFT)—and anti-corruption compliance programmes, currently contained in Chapter XIII relating to the Business Transparency and Ethics Programme (PTEE).Although this may initially appear to be a mere exercise in regulatory consolidation and simplification, the draft Circular introduces changes that will require companies to reassess their exposure to a broader range of criminal risks.Under the proposed Circular, the Superintendence requires companies to incorporate into their risk assessments not only money laundering and corruption risks, but also environmental offences, crimes against the economic and social order, offences established under Law 1474 of 2011, and even electoral crimes. These are precisely the categories of offences incorporated by Law 2195 of 2022 as triggering events for the administrative liability of legal entities.From a legal perspective, this means that companies will now be expected to implement preventive measures addressing criminal risks that extend well beyond traditional anti-money laundering and anti-corruption compliance programmes.If a final criminal conviction or opportunity principle agreement is issued in relation to any of these offences involving a company's directors, officers or employees, inadequate management of these newly identified criminal risks may satisfy the third element required to establish administrative liability. Conversely, an effective compliance programme addressing these risks may constitute the company's principal defence against administrative sanctions.The potential consequences are substantial. Administrative fines may reach up to 200,000 statutory monthly minimum wages (SMLMV). Based on the 2026 minimum wage, this represents approximately COP 350 billion (around USD 95 million), providing companies with a compelling incentive to strengthen the management of their criminal compliance risks.

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.