Mexico needs to give more priority to foreign bribery
enforcement, having yet to prosecute a case involving the bribery
of foreign public officials 19 years after ratifying the OECD
Anti-Bribery Convention. This is a cause for significant concern,
especially given the export driven nature of the Mexican economy,
and because its exports include high-risk sectors for corruption,
such as extractives, manufacturing and agricultural products.
The OECD Working Group on Bribery has just completed its Phase 4
evaluation on Mexico’s implementation of the Convention on
Combating Bribery of Foreign Public Officials in International
Business Transactions and related instruments.
The report highlights several reforms following the
constitutional amendment that resulted in the establishment of
the National Anticorruption System. These could enhance
implementation of the Convention, once fully operational.
The report therefore makes recommendations to urgently implement
these reforms as follows:
• Nominate a
Special Anti-Corruption Prosecutor, appoint judges to the Federal
Court of Administrative Justice, appoint the Attorney General
pursuant to the new constitutional mechanism, and implement the
new Anti-Bribery Protocol.
The report further makes recommendations to:
• Immediately
ensure adequate resources for investigating and prosecuting
foreign bribery cases, particularly the four that are ongoing,
and for foreign bribery enforcement by the Special Prosecutor’s
Office for Corruption-Related Offences, once it is operational.
• Significantly
strengthen measures for detecting foreign bribery, including
through: the identification of bribe payments concealed as
allowable expenses for tax purposes; the identification of bribe
proceeds through Mexico’s Anti-Money Laundering system;
improvements to the exchange of information between agencies that
may detect foreign bribery and the law enforcement authorities;
and clarification of the reporting obligations of accountants and
auditors that discover foreign bribery.
• Enact
whistleblower protections for public and private sector employees
that report in good faith and on reasonable grounds suspected
acts of foreign bribery to the competent authorities.
• Strengthen the
newly reformed corporate liability regime, including by
clarifying the circumstances that trigger liability for foreign
bribery, and making it apply to State-Owned Enterprises.
The report also recognises that Mexico successfully implemented
recommendations from its Phase 3 evaluation in 2011, including to
amend the foreign bribery offence so that it applies to cases
involving third party beneficiaries, ensure that companies can be
held liable for foreign bribery without prosecuting or convicting
the individual perpetrators, increase the maximum sanctions for
accounting offences, and clarify that bribes are non-tax
deductible. It also recognises as positive achievements the
Federal Judiciary Council’s new judicial statistical collection,
which provides comprehensive information about foreign bribery
enforcement, and the introduction of successor liability into
Mexico’s criminal corporate liability framework, which is also
notable for its coverage of a large range of forms of corporate
restructuring.
The OECD Working Group on Bribery, which is composed of 44
countries, adopted the report on 10 October 2018, including
recommendations made to Mexico on pages 56-61. In accordance with
standard procedures, Mexico will be invited to submit a written
report in two years (October 2020) to the Working Group on the
steps taken to implement these recommendations. At that time, the
Working Group will decide if it is appropriate to schedule a
further evaluation to assess progress on the reforms that are not
yet operational.
This report, available at http://www.oecd.org/corruption/anti-bribery/OECD-Mexico-Phase-4-Report-ENG.pdf,
is part of the OECD Working Group on Bribery’s fourth phase of
monitoring, which was launched in 2016. Phase 4 examines
the evaluated country’s particular challenges and positive
achievements. It also explores issues such as detection,
enforcement, corporate liability, and international cooperation,
as well as unresolved issues from prior Working Group
evaluations.
