The approval in December 2013 of amendments to the Mexican Constitution designed to foster greater private sector investment in the Mexican energy industry will usher in a new era for Mexican oil and gas and electricity markets. These reforms will create new business opportunities in Mexico for Asian, European and U.S. energy companies. In addition, they will also lead to increased contracting by private sector companies (both domestic and foreign) with state-owned companies such as Pemex in the oil and gas market or CFE (the Comisión Federal de Electricidad) in the electricity market. Such new agreements will be subject to scrutiny under Mexico’s 2012 Anti-Corruption Law and the U.S. Foreign Corrupt Practices Act, with important considerations for business.
In the United States, the Foreign Corrupt Practices Act (FCPA) is a U.S. law designed to prevent improper payments or inducements to foreign govern-mental officials in order to corruptly influence their actions. The FCPA seeks to discourage foreign corrupt practices through two principal mechanisms: (i) anti-bribery provisions and (ii) accounting and record-keeping provisions. U.S. companies and their officers, directors, employees, and agents (as well as all U.S. citizens) are subject to the anti-bribery provisions of the FCPA. In addition, foreign companies whose shares are publicly traded in the United States (including through the use of American Depositary Receipts) are subject to the accounting and bookkeeping provisions requiring the company to keep books, records and accounts which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company.
Under the FCPA, it is unlawful for any U.S. company (or any officer, director, employee, or agent of such U.S. company) or citizen to act with corrupt intent in furtherance of any offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorize the giving of anything of value to any foreign government official for purposes of influencing a foreign official.