On March 25, this session organized by César Zárate, Alfredo Moreno and Joaquín Rodríguez, partners of ECIJA in Spain, Chile and Mexico, was held with the purpose of sharing the regulation and experience of each country in the implementation of criminal compliance systems, through a Q&A session.
Today we share with you the memories of this meeting with its highlights for Mexico:
What is the current state of compliance global wide and how important is it within international organizations?
International events such as the Subprimes, Panama Papers and Cambridge Analytica have caused the regulation of compliance systems to increase and evolve in recent years worldwide, leading to the fact that nowadays special attention must be paid to the ethical standards of business conduct.
For the three countries analyzed, Spain, Chile, and Mexico, this led to the criminal liability of legal entities, since economic fines were not necessarily inhibiting non-compliance.
From the moment this nuance of criminal liability is given, companies have to start paying more attention to the implementation of measures to reduce the risk of committing illicit conducts.
In consequence, there has been a trend towards the regulation of compliance systems in several areas. Anti-money laundering, combating terrorism, personal data protection, and even the prevention of workplace harassment are examples of the issues that are being regulated in the legislation of the three countries, which makes the implementation of compliance systems critical.
In our country there is a draft law on corporate due diligence which derived from the General Recommendation No. 37 on the Respect and Observance of Human Rights in the Activities of Businesses issued by the National Human Rights Commission on May 21, 2019. If approved, this law would become the first of its kind in Latin America.
To learn more about the fundamental issues addressed by this initiative, herein is a link to a note on the subject: Mexico: Corporate “Due Diligence” in the field of Human Rights: the new challenge for companies.
What crimes can legal entities be liable for in each country?
In 2014, the criminal liability of legal entities was incorporated into the Mexican legal system. This is regulated both at the federal level, in the Federal Criminal Code, and at the local level, in some of the criminal codes of the 32 States of Mexico.
The general rule is that the liability of legal entities is limited to the catalog of crimes in the Federal Criminal Code and its correlatives provisions in the criminal codes for the States of Mexico.
However, at this point in time, only the federation and three States (JAL, QROO and VER) have a catalog of crimes. This means that in those states in which there is no catalog of crimes, legal entities may be criminally liable for all crimes provided for in their laws.
The regulation of the State of Quintana Roo is probably the most advanced. It largely imports the principles of the Spanish criminal code, which has served as a guide for the development of criminal compliance systems worldwide.
Among the crimes contemplated in the federal catalog are fraud, operations with resources of unlawful sources, tax fraud, copyright crimes, to mention a few. The federal catalog is quite broad and there are certain differences with those established at the local level.