With few Foreign Corrupt Practices Act (FCPA) corruption investigations resolved under the Trump administration's watch, it is too early to weigh up how the administration will affect enforcement or settlements in the long term. On its face, the new FCPA Corporate Enforcement Policy signals a more business-friendly approach by removing the spectre of a monitor in many situations and by committing to a presumption of a declination in certain circumstances.
The National Insurance and Bonds Commission recently added two new articles to the Insurance and Bonding Sole Provisions which set out new surety insurance contract requirements. Contracts must now include, among other things, confirmation that the insurer is authorised to pay the indemnity for damages without prior notice or consent of the policyholder and that the indemnity may be paid as compensation or as a penalty for the damages suffered.
The National Waters Commission recently submitted to the Federal Regulatory Betterment Commission its draft revision of the Mexican official standard which establishes the maximum permissible levels of pollutants in wastewaters discharged into national waters or properties. The draft aims to modernise the standard by including additional terms and definitions, pollutants and parameters regarding wastewater discharges into federal waters, as well as new sampling and reporting frequency obligations.
There were a number of court precedents in 2017 concerning financial transactions. For example, a recent non-binding collegiate court precedent broadened the scope and source of information that judges should use to analyse and determine the existence of usury, while another validated judges' authority to use the annual interest rate published by companies that engage in vehicle financing. Further, a binding Supreme Court precedent dealt with the maturity date of promissory notes.
Companies now have even greater incentives to have strong, meaningful Foreign Corrupt Practices Act compliance programmes. When the deputy attorney general recently announced the new enforcement policy that will guide the US Department of Justice, he made it clear that the government wants to create incentives for companies to police themselves when it comes to bribery and corruption.
In order to prevent the misuse of customer information, the National Insurance and Bonds Commission recently amended the Insurance and Bonding Sole Provisions with regard to information gathered electronically. Among other things, the amendments require insurers to implement security measures and mechanisms for the transfer, storage and processing of information generated electronically when contracting insurance and bonds and rendering other services to customers.
The Ministry of Finance and Public Credit recently circulated a substantially amended draft of the Financial Technology Bill, which has been renamed the Financial Technology Institutions (FTIs) Law. The law aims to regulate the financial services provided by FTIs – including those which are bound to specific regulations and offered or rendered through innovative means – as well as the organisation of such institutions and their operations.
The National Agency for Industrial Safety and the Protection of the Environment in the Hydrocarbons Sector recently filed a draft emergency Mexican official standard before the Federal Regulatory Betterment Commission. The draft establishes the criteria for classifying types of special and hazardous waste derived from the hydrocarbons sector, determines which types of waste are subject to a waste management plan and details the procedures for formulating such a plan.
The National Insurance and Bonds Commission has issued a temporary measure to enable insureds and their beneficiaries to be immediately compensated for damages suffered as a consequence of the recent earthquakes that affected several areas of Mexico. The temporary measure applies to Mexican insurers that have ceded risks to reinsurers and allows them to use funds to meet assumed risks and recover compensation from reinsurers at a later date.
In recent years, Mexico has been rated as having one of the highest rates of credit card fraud in the world. The National Banking and Securities Commission recently published the Resolutions that Modify the General Rules Applicable to Credit Institutions, which require credit institutions to verify information and documentation filed by users and customers with different government bodies in order to assure the identity of each prospective customer.
Two recent cases before the Department of Justice (DOJ) have sent a signal that the DOJ may become more proactive in combating small-business contracting fraud. These cases underscore the importance of ensuring that small-business eligibility representations are accurate, as the penalties for misrepresentation can be severe.
In a recent decision before the World Intellectual Property Organisation, a panel denied the transfer of a three-letter domain name, even though it identically reproduced a complainant's trademark, because the domain name had been registered years before the complainant acquired trademark rights and the complainant failed to demonstrate that the respondent was aware of those rights.
The National Insurance and Bonds Commission recently amended the Sole Provisions on Insurance and Bonds in order to increase legal certainty with regard to the regulatory framework that applies to actuarial, financial and investment functions. These amendments aim to ensure that the commission has the information required to take necessary regulatory action in the event that irregularities are detected and prompt intervention is needed.
The recently published draft Financial Technology Law will regulate the organisation, operation, function and authorisation of companies that offer alternative means of access to finance and investment, the issuance and management of electronic payment funds and the exchange of virtual assets or cryptocurrencies. Among other things, the initative aims to take advantage of the opportunity to expand the financial market to include segments not covered by traditional banking institutions.
Trusts are the most commonly used special purpose vehicle (SPV) in Mexico. Most securitisations involve the use of a trust as the SPV. Trusts are also used for secured loans, and collateral or payment source trusts are often used in Mexican financings to segregate collateral from the debtor. In addition, almost all project finance involves transferring assets to a trust in order for such trust to be the payment vehicle of the transaction. However, a recent court decision may have put these structures at risk.
For energy, mining and resources companies, the cost of corruption – and getting caught – is real. Energy and mining companies, along with other resources companies, remain a major focus of bribery and corruption investigations worldwide. The government wields a potent weapon against bribery and corruption in the form of the Foreign Corrupt Practices Act.
Following the expansion of shale oil extraction projects and the discovery of unconventional hydrocarbon deposits, the National Agency for Industrial Safety and the Protection of the Environment in the Hydrocarbons Sector recently commenced a public consultation process to enact applicable water protection guidelines. The draft guidelines provide a glimpse of the authorities' preliminary approach to shale oil projects with regard to water resources and environmental protection.
The Versailles Court of Appeal recently affirmed the Nanterre Court of First Instance's decision in relation to the transfer of three domain names infringing the trademark of a collectivité territoriale (the catch-all term for French communes, departments and regions). The court of appeal reviewed three decisions delivered under SYRELI, an alternative dispute resolution procedure, to resolve domain name disputes under the '.fr' country code extension for France.
The National Insurance and Bonds Commission recently amended the Sole Provisions on Insurance and Bonds to provide the value of the investment unit that insurers and bonding companies must consider when calculating their required minimum paid-in capital. Insurers and bonding companies must comply with the required minimum paid-in capital each year to ensure that they can meet their financial obligations and responsibilities in the exercise of their activities.
In the past, compliance and remediation in the context of healthcare investigations were typically seen as afterthoughts. However, compliance efforts are now being more closely scrutinised by prosecutors. The Department of Justice recently issued an 11-part series of questions styled as guidance on corporate compliance programmes. Interestingly, it is a series of questions, not a series of answers. Companies are going to have to work the answers out themselves with their compliance departments and counsel.