USMCA Could Give Corruption Fighters Another Tool in Mexico
Inclusion of a chapter on corruption provides a mechanism for greater accountability.
December 16, 2019 at 05:00 AM
4 minute read
The new trade agreement between the United States, Mexico and Canada looks to reinforce anti-corruption efforts in Mexico, where bribery of public officials has been all too common.
Representatives from all three countries signed a revised version of the pact last week, which the U.S. Congress is expected to approve sometime in 2020. Still in the pact is Chapter 27, which requires the signatories to adopt or maintain anti-corruption measures to prevent and fight bribery.
The chapter is most relevant to Mexico. The country scores 28 out of 100 points in Transparency International's Corruption Perceptions Index, where a lower score means more corruption. The U.S. scores 71 points while Canada scores 81, putting it among the top 10 cleanest countries for doing business.
Ruti Smithline, co-chairwoman of Morrison & Foerster's Latin America desk and a member of the firm's Anti-Corruption Task Force, says the anti-corruption chapter amounts to another mechanism of accountability that "may be able to move the needle".
"NAFTA never included this provision – the fact that this is even in the agreement is positive," said Smithline, who advises clients on cross-border investigations, global compliance programmes and anti-corruption due diligence for acquisitions, joint ventures and private equity transactions.
Compliance work is a growth business in Latin America as local prosecutors step up investigations into corruption.
Compliance personnel can use the USMCA chapter as additional leverage to convince clients to cooperate with anti-corruption efforts. Mexico already ascribes to various international treaties and oversight processes, such as peer reviews by the OECD Working Group on Bribery.
The most recent review, in 2018, was rather damning. The working group concluded: "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."
Mexico's export-driven economy ships most of its goods to the U.S., supplying one in three fresh fruits and vegetables consumed there, as well as key components for manufacturing and finished products. Mexico recently overtook China as the U.S.'s biggest trading partner by value of goods. By some estimates, though, corruption takes 10% of Mexico's $1.2 billion annual gross domestic product.
Questions remain about Mexico's capacity and willingness to crack down on corruption. Mexican President Andrés Manuel López Obrador took office in December 2018 on pledges to stamp out corruption. He slashed government payrolls, but in the process critics say he also crippled key institutions that provide oversight for government excess.
The López Obrador government has gone after the former head of state oil company Pemex, accusing him of having accepted bribes from Brazilian construction giant Odebrecht in exchange for lucrative contracts. Emilio Lozoya avoided detention in Mexico during the summer with help from a legal stay called an amparo.
Questions by Mexico's financial intelligence unit, which investigates money laundering and other financial crimes, also led to the resignation of Supreme Court Justice Eduardo Medina-Mora in October. He was appointed under President Enrique Peña Nieto in 2015 and was set to serve until 2030. He was also ambassador to the United States under the last administration and attorney general for President Felipe Calderón.
López Obrador said earlier this year that the financial intelligence unit had received compromising information about Medina-Mora from U.S. authorities.
Anti-corruption law is widely perceived in Mexico as a U.S.-based concept that can infringe on national sovereignty and ignores the realities of doing business in the country.
This month, U.S. officials arrested Genaro García Luna, the architect of Mexico's war against the drug cartels under Calderón, for allegedly accepting bribes from the Sinaloa cartel. Drug trafficker Jesús 'El Rey' Zambada had testified in the New York trial of convicted kingpin Joaquín 'El Chapo' Guzmán that García Luna protected the Sinaloa cartel in exchange for millions of dollars.
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