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LACCA Approved: Roberto Hernández-García

Anti-Corruption & Compliance Firm: COMAD SC (Mexico City) Mexico

Roberto Hernández-García
rhernandez@comad.com.mx

Roberto Hernández-García is a partner at COMAD, SC in Mexico City, a law firm founded in 1965, specialising in public and private construction, public procurement, and compliance matters. Since 1989, he has advised top-class European, American and Mexican construction, engineering and architect firms in relevant construction projects and compliance matters in Mexico and Central America in the energy, oil, health, water, sewage, gas, petrochemical, parks, transportation, airports and building sectors, among others.

Thought Leaders 2018 - Interview with Roberto Hernández-García

What made you decide to specialise in anti-corruption and compliance?

I was originally invited to chair the ICC anti-corruption committee in 2005. Since then, I have been promoting ethics and compliance on a pro bono basis. Later, people started to seek my advice, aware that Comad SC are pioneers in this sector in Mexico and know a lot about how things have evolved and what this means for companies operating in the country. Since we are a public procurement and construction law-oriented firm, we decided to focus on compliance in these areas, particularly since they are sectors that are always more at risk of corruption. We think that adding anti-corruption as one of our main practice areas gives us a lot of credibility and is also a way to help promote transparency and ethics in the public procurement and construction industries.

What would you say has been your biggest achievement to date?

My biggest achievement in this area was to visualise and create the first ICC anti-corruption clause, which later become a worldwide instrument for companies to promote transparency and ethics within their contracts. Since then, the ICC has been kind enough to recognise my contribution and today, the anti-corruption clause is a very important part of the ICC’s anti-corruption toolbox. I am very proud that it all started with an idea that came out of a desire to create a better business environment.

How has the compliance landscape developed in Mexico over the past five years?

It is difficult to measure. Today, we have a legal framework that it was not possible to imagine 10 years ago. We have a framework that was created with the participation of serious non-governmental organisations and a lot of discussion and interaction with the public sector. However, the system has faced a lot of challenges and in some ways, it is currently being used more to advance political interests than to prevent companies and government officials from engaging in misconduct. This year, we are facing one of the most controversial elections in recent history and it remains to be seen exactly how committed the new president will be to tackling the issue of corruption. In the meantime, we have some companies in Mexico already taking serious steps to implement a culture of compliance, while others remain reluctant given what they see as a lack of commitment from the government. Either way, I think we are at a crossroads that will sooner or later lead to a dramatic change in the way we look at, understand, and act in connection to, corruption.

Mexico’s National Anti-Corruption System entered into force in 2017. What impact has this had on the corporate compliance landscape?

The new administrative and criminal laws are providing, for the first time, elements to reduce the sanctions of any corporation found guilty of misconduct if they have a solid compliance and integrity system in place. The impact of this is twofold: it incentivises companies to implement more compliance and ethics practices that will help to prevent misconduct, while also allowing them to see the benefits should an incident occur.

What are the biggest challenges to combating corruption in Mexico? What more must be done in your opinion?

The first biggest challenge is to change the perception of corruption across the country. We do not need to wait for the government to take the lead, but instead can all start making a difference from small actions. If individuals and companies start making an effort to have zero tolerance of corruption, even if this comes at a high cost, the market will also start to change. It is a major challenge, but we must start immediately.

The second biggest challenge is that government must take more measures to stop impunity and sanction companies and individuals objectively and fairly. If we are able to begin with these two challenges, I think we would begin to see a fantastic improvement. However, it is easier to say it than it is to make it become a reality, so this is a daily fight that must involve everyone from all sectors of society.

How can the private sector help advance the fight against corruption? What advice would you give to clients?

The private sector has 50 per cent of the guilt and 50 per cent of the solution. I know of companies that, in public, say that they are tired of corruption, but continue to engage in unethical practices since they have “no other option”. There are always options and ways to do things in the correct manner. Of course, they are not the easiest or fastest, but companies and individuals should start to break the “value” chain and the market for corruption. My advice is never to surrender. No business opportunity is worth wasting the integrity of your organisation as well as its destiny.

As a managing partner, how would you like to see your practice develop in the coming years?

Compliance is a wonderful practice area. It is like going back to your university dreams of making a better world. It is not easy and has a lot of challenges, but doing something positive, and not only for a client’s interests, is a wonderful and fulfilling experience.

I believe that in the coming years our practice will continue to evolve and grow in these specialised areas. We are not big in size, but we are able to provide an excellent service, and that is why we have very important clients in the construction, government contracts, litigation, arbitration and, of course, compliance sectors. We are also looking to continue evolving through the use of technology tools and new projects.

What advice would you give a young lawyer looking to enter the legal profession?

Never fall in to the dark side. There is no return.

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