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Tuesday
Aug302016

Mexico moves forward: Sweeping new anti-corruption regime, presidential apology

Mexico President Enrique Peña Nieto (official government photo)After an aggressive grassroots campaign, Mexican President Enrique Peña Nieto recently announced the enactment of sweeping changes to Mexico’s anti-corruption regime. The new law is a significant step toward transparency in a country that consistently ranks among the most corrupt in the region and the world.

When he announced the new law, President Peña Nieto publicly apologized for his own involvement in a conflict of interest scandal that has plagued his administration for years. 

The new law creates Mexico's first independent anti-corruption prosecutor. It also sets up whistleblower protections for individuals and implements methods to enhance cooperation across federal, state, and municipal enforcement authorities, as well as with the U.S. government and other international regulators.

The new legislation was originally proposed in early 2016 to the Mexican legislature through a unique citizen petition process primarily aimed at increasing transparency of public sector officials. The new law expands transparency but doesn't require recipients of government contracts to disclose personal assets, tax information or economic interests. It also allows public officials to withhold information “whose publication may affect privacy or personal data protected by the Constitution.”

The regulations, which will come into effect on July 19, 2017, also provide for significant criminal and administrative sanctions for private parties and legal entities that are found to have engaged in bribery, collusion in public bid procedures, influence peddling, wrongful use of public resources, or wrongful recruitment of ex public servants, among other acts.  

  • Individuals face sanctions of up to twice the amount of the acquired benefits (or if no tangible benefit, around $600,000), temporary ineligibility to participate in procurement, leases, services or state-owned projects for a period ranging from three months to eight years, and compensatory and/or punitive damages. 
  • Legal entities face similar sanctions -- up to twice the amount of the benefit (and up to $6 million if no monetary benefit) -- and could be deemed ineligible to participate in procurement, leases, services or state-owned projects for up to 10 years. 
  • Entities could also be subject to suspension of activities for a period ranging from 3 months to 3 years, partnership dissolution, and compensatory and/or punitive damages.  

The new regulations provide for some partial defenses for entities and persons charged with violating the law. For example, legal authorities will give credit for the existence of a current compliance or integrity program that includes effective reporting and whistleblower protection tools. Entities may also receive credit for self-reporting misconduct and collaborating with government investigations, and a person who has committed a serious administrative offense can confess and fully and continuously cooperate with authorities in exchange for a reduction of 50 percent to 70 percent of the total amount of his or her sanction.

*      *      *

In an unprecedented step, Peña Nieto issued a public apology during the press conference announcing the legal reforms for the distraction of an ongoing conflict of interest scandal that has plagued his administration for nearly two years.

Beginning in November 2014, Mexican media outlets started reporting that a major government contractor had sold a luxurious, seven-bedroom home valued at $7 million to Peña Nieto’s wife, first lady Angélica Rivera.  The contractor who designed and sold the home to Rivera, Grupo Higa, had been part of a consortium of companies that won a multibillion-dollar infrastructure contract during Peña Nieto’s presidency.  One of the contractor’s chief executives was a close friend of Peña Nieto. 

Rivera and Peña Nieto maintained that the purchase of the home was legitimate, and a government-sponsored investigation found no evidence of wrongdoing on the part of either member of the first family. However, during his press conference, Peña Nieto apologized for the effect the controversy had on public perception of his administration, though he maintains that he had not broken any laws and that combating corruption would continue to be a principal goal of his administration.

*     *      *

The changes to Mexico’s anti-corruption enforcement regime occur at the same time U.S. regulators signalled that corruption in Mexico remains an enforcement priority. 

On August 11, the SEC announced that Key Energy Services, Inc., a Houston-based energy company, would pay $5 million in disgorgement for violations of the internal controls and books-and-records provisions of the Foreign Corrupt Practices Act. 

The Commission explained that its investigation yielded evidence that Key Energy’s Mexican subsidiary had made payments to an employee at Pemex, Mexico’s state-owned oil company, in order to induce the employee to provide information that would benefit Key Energy while negotiating Pemex contracts. Key Energy paid the Pemex employee through a third-party consulting firm and recorded the payments as legitimate business expenses in the records of the Mexican subsidiary.

*     *    *

The Key Energy enforcement action and recent changes in Mexican law prove that the “state of play” regarding interactions with government officials in Mexico is becoming increasingly fraught with risk. Given this reality, companies should consider how their past or future conduct may make its way into the public sphere and monitor the practical application of these new laws on the day-to-day operations of their businesses. 

For example, companies doing business in Mexico can protect themselves by ensuring they perform comprehensive, risk-based due diligence on engaged and prospective third parties, training and educating their employees on the risks associated with doing business in Mexico, and examining the company’s internal controls to ensure that the company has properly accounted for its funds, its presence in the country, and any interactions with government officials.

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Kim Nemirow and Nicholas Berg are partners at Ropes & Gray based in the firm's Chicago office. They focus their practice on anti-corruption and other international risk issues.

The authors thank David Peet, a Ropes & Gray associate in the litigation department and a member of the firm’s government enforcement practice group. He's based in Washington, D.C.