Adhering to the FCPA An/- Corrup/on

Transcription

1 Adhering to the FCPA An/- Corrup/on 1

2 The Reason for FCPA Compliance As a business based in Mexico, Batres Nieto Abogados Asociados SC (Visasmex) is not required to adhere to the guidelines of the FCPA but our internal poli/cs demands act in consequence. Our clients expect us to observe a high standard of ethics in our business rela/onships both domes/c and interna/onal. Accordingly, we must seek compliance from our foreign business partners to ensure FCPA compliance across the globe. The following presenta/on and addi/onal materials provide further informa/on regarding the scope of the FCPA and Visasmex policies concerning compliance. Integrity in the implementa/on of this policy is of the utmost importance to Visasmex, and is required of any individual/en/ty working on behalf of Visasmex. 2

3 Relevant An/- Corrup/on Laws The U.S. Foreign Corrupt Prac/ces Act (FCPA) is an outward looking an/fosibery law, which has far- reaching, global implica/ons for Visasmex business. The FCPA makes it unlawful for any ci/zen, na/onal, resident, or corpora/on of the United States to bribe foreign government officials to obtain or retain business. There are also important na/onal, interna/onal and regional an/- bribery conven/ons and efforts such as: Organiza/on for Economic Co- opera/on and Development ( OECD ) Conven/on on Comba/ng Bribery of Foreign Public Officials in Interna/onal Business Transac/ons United Na/ons Conven/on Against Corrup/on Inter- American Conven/on Against Corrup/on Inter- American Development Bank s and Asian Development Bank s An/- Corrup/on Ini/a/ves UK Bribery Act

4 Visasmex Requirements Visasmex has a zero- tolerance policy for bribery and other corrupt ac/vi/es. We do not tolerate improper payments to government officials or anyone else, by our own employees or by our business partners. We require that our business partners not make any payments or provide anything of value to any government official to obtain or retain business or secure any improper advantage. If posi1ve results may not be obtained without making improper payments, Visasmex does not want those results. Per Visasmex policy, we expect our business partners to keep accurate books and records of all expenses incurred while conduc/ng business with us. We will periodically review the ac/vi/es of our business partners to ensure that our compliance expecta/ons are con/nuously met. 4

5 Visasmex An/- Corrup/on Policy Visasmex policy is in place to ensure that: Our employees and business partners do not directly or indirectly offer, promise to make, or make any payments of money or value to government officials corruptly in an a`empt to retain or obtain business. Visasmex and our business partners maintain accurate books and records, and an adequate system of internal accoun/ng control. No improper payments, including payments to third par/es, compe/tors and/ or commercial customers are made that may be prohibited by U.S. or local laws. These laws include those prohibi/ng commercial bribery. 5

6 The Elements of the FCPA 1. Who 2. Corrupt Intent 3. Payment 4. Recipient 5. Business Purpose Test 6

7 FCPA Element One: Who The FCPA poten/ally applies to any individual, firm, officer, director, employee, or agent of a firm Individuals and firms may also be penalized if they order or assist another party in viola/ng the an/- bribery provisions. Types of violators Issuer a corpora/on that has securi/es registered in the U.S. Domes/c Concern any individual (ci/zen, na/onal, resident) or corpora/on that resides or has their principle place of business in the U.S. Foreign Companies & subsidiaries companies outside of the U.S. that are ordered to make or assist a U.S. company with making corrupt payments and/ or prac/ces 7

8 FCPA Element Two: Corrupt Intent A person or company making the payment must have a corrupt intent to be in viola/on the FCPA. The payment must be intended to induce the recipient to misuse an official posi/on or posi/on of authority to direct business wrongfully. 8

9 FCPA Element Three: Payment The FCPA prohibits paying, offering, promising to pay, and authorizing to pay money or anything of value Anything of value this includes money (in any form), gihs, travel expenses, medical care, event sponsorships, incen/ve payments, offers of employment, etc 9

10 FCPA Element Four: Recipient The FCPA prohibi/on extends to corrupt payments to a foreign official, a foreign poli/cal party or party official, or any candidate for foreign poli/cal office Foreign official any officer or employee of the foreign government, a public interna/onal organiza/on, or any person ac/ng in an official capacity The FCPA applies to payments to any public official, regardless of rank or posi/on 10

11 FCPA Element Five: Business Purpose Test The FCPA prohibits payments made in order to assist Visasmex in obtaining or retaining business for or with, or direc/ng business to, any person Obtaining or retaining business interpreted broadly to include more than the award or renewal of a contract (e.g., issuance of an immigra/on work permit or visa, tax reduc/on, issuance of license or permit, government concession, change in laws or regula/ons, confiden/al informa/on in advance of tender) 11

12 Third Party Payments It is prohibited to make corrupt payments through intermediaries It is unlawful to make a corrupt payment to a third party with the knowledge that all or a por/on of the payment will be given to a foreign official to induce unlawful ac/vity 12

13 Payments for Governmental Ac/ons There is an excep/on to the prohibi/on for payments that facilitate or expedite performance of a rou/ne governmental ac/on These ac/ons include: Processing governmental papers, such as visas and work orders Obtaining permits, licenses, or other official documents However, there is a fine line between payments prohibited by the FCPA and payments that fall under the excep/on Visasmex policy in this area is stronger that the explicit terms of the FCPA. Visasmex permits no such excep/on and will not allow any payment to facilitate or expedite rou/ne government ac/on 13

14 Grease Payments Visasmex does not permit the payment of facilita/ng or grease payments by its business partners Facilita/ng or grease payments are for rou/ne, non- discre/onary governmental ac/ons (e.g., obtaining permits, processing papers, police protec/on, mail delivery) Visasmex recognizes that such payments are common in some jurisdic/ons However, such payments are also generally illegal in those jurisdic/ons Visasmex will neither tolerate nor reimburse such payments. Under rare, exigent circumstances (e.g., personal safety concerns require the making of a facilita/ng payment for protec/on), the Management Department will consider requests for pre- approval for such payments. Visasmex will not reimburse payments for which pre- approval was not requested and granted 14

15 Consequences of Non- Compliance Failure to meet Visasmex an/- corrup/on expecta/ons or requirements can result in the termina/on of your business rela/onship with Visasmex Consequences may also include significant civil and criminal fines against any individuals involved, any involved business partners, and Visasmex Imprisonment of individuals (including non- US persons) and extradi/on Severe reputa/onal damage Costly inves/ga/ons and delays 15

16 UK Bribery Act 2010: Scope Similar to the FCPA, the United Kingdom has enacted the Bribery Act 2010 The UK Bribery Act applies to both individuals ci/zens and corpora/ons in the United Kingdom The Bribery Act extends to England, Wales, Scotland, and Northern Ireland As many of our clients have affiliate or subsidiary offices in the UK, we also need to ensure that our company and our foreign business partners adhere to the UK Bribery Act along with the FCPA 16

17 UK Bribery Act 2010: The Law The Bribery Act 2010 includes prohibi1ons of the following: Bribery of another person when a person offers an advantage to another that is intended to induce performance or reward for improper performance It does not ma`er whether the person to whom the advantage is offered is the same person to perform the ac/vity concerned Accep/ng or being bribed when a person requests or agrees to accept an advantage for an ac/vity performed improperly It does not ma`er if the advantage is accepted by the person or a third party, if the advantage is for the benefit of the person or a third party, and finally, in many circumstances, it does not ma`er if the person knows or believes that the performance is improper 17

18 UK Bribery Act 2010: The Law (II) The Bribery Act 2010 includes prohibi1ons of the following: Bribery of foreign officials when a person bribes a foreign public official with the intent to influence the official in their capacity as a foreign official The person bribing must intend to retain business or an advantage in business conduct Commercial organiza/ons are also held liable for failure to prevent bribery or commission of bribery 18

19 UK Bribery Act 2010: Penal1es Upon summary convic/on, a person may be imprisoned for up to one year, a fine, or both Upon convic/on on indictment, a person may receive a prison term not exceeding 10 years, to a fine, or both For various offenses, a prison term or fine amount is set by the statutory minimum depending on the offense commi`ed Bribery offenses that involve partnerships may result in imprisonment or a fine that must be paid out of the partnership assets 19

20 Visasmex Compliance Agreement As detailed in this presenta/on and the addi/onal FCPA compliance materials, we request that you do not: Improperly influence any act or decision of a foreign official in his/her official capacity Induce a foreign official to do or fail to do any act in viola/on of his/her lawful duty Secure any improper advantage Improperly induce a foreign official to use his/her influence with a government or government instrumentality to influence any act of decision of such government or instrumentality Make any payment, gih, offer or promise that is prohibited by local law Make any payment or reimbursement for spouse or companion travel, leisure excursions, or vaca/ons regarding professional travel We also ask that you: Support all incurred expenses with invoices documen/ng the business purpose of the travel or expenditure These invoices and records will further be archived by Visasmex for our records 20

21 Repor1ng Suspicious Behavior or Policy Viola1on If you wish to report suspicious behavior or a possible viola/on of the An/- Corrup/on Policy for Business Partners, you are encouraged to contact your Visasmex, contact or an available Visasmex, employee as soon as possible. If that is not possible or would not facilitate resolu/on of the problem, please contact Visasmex, through any of the following methods: Phone: +52 (81) E- mail: info@visasmex.com Mail: Calzada del Valle , Col. Del Valle, San Pedro Garza García, Nuevo León, México Fax: (81)

22 Ques1ons or Concerns? If you have any ques/ons, please contact our offices immediately so that we may clarify any issues 22