The emergence of compliance work is not a new development in Mexico, but it faces the challenge of fully understanding what compliance is, the context of its genesis and the fundamental divergences between the local practice and the Anglo-Saxon pioneers who created it.

According to Michael Josephson[1], a precedent of compliance that cannot go unnoticed is the signing in 1977 of the Foreign Corrupt Practices Act (FCPA), which imposed responsibility on companies to avoid committing acts of bribery and corruption.

The next antecedent of compliance and perhaps its formal origin as a profession, according to Alison Taylor[2], associate professor at Fordham Law School, New York, dates back to 1987 with the creation of the Federal Sentencing Guidelines for Organizations (FSGO).

The FSGOs triggered the policies and procedures as we know them today so that organizations would not violate laws and regulations, and would adhere to ethical principles that would safeguard the integrity of the U.S. financial system in light of the events of that decade.

The requirements of the FSGOs gave rise to the figure of the person responsible for ensuring compliance: the compliance officer.

This new figure would be responsible for reviewing or drafting new codes of conduct, policies and procedures, training programs, risk assessments, and establishing whistleblower hotlines.

However, this background prompts reflection on whether those regulatory functions that currently fall to the compliance officer, which tend[3] to be more focused on the prevention of money laundering and terrorist financing (ML/FT), also contemplate the prevention of acts of bribery and/or corruption in organizations, ethics/conduct programs or exposure to international sanctions[4].

The truth is that current regulations, for example for credit institutions, establish the minimum functions and obligations of the compliance officer, but do not limit his or her scope of action, which opens the door to a holistic approach to financial crimes, ethics and conduct, to mention a few.

Understanding the origins of compliance is the basis of where the future of the profession should be heading, with the urgent issue of innovation and the digital era that brings with it challenges to the protection of personal data, cybersecurity and the understanding of new technologies such as blockchain, smart contracts, virtual currencies, among others.


References

[1] Society of Corporate Compliance & Ethics, History of the Integrity, Ethics and Compliance Movement: A cautionary tale for CEOs and corporate directors, Michael Josephson, visitado el 14 de mayo de 2019. https://assets.corporatecompliance.org/portals/1/PDF/Resources/ethikos/past-issues/2014/scce-2014-01-ethikos-josephson.pdf

[2] Compliance Officer Day, The Future of Ethics and Compliance, Alison Taylor, visitado el 14 de mayo del 2019. https://www.complianceofficerday.com/future-of-ethics-compliance/

[3] Como ejercicio, bastaría realizar un análisis minucioso de las Disposiciones de Carácter General a que se refiere el Art. 115 de la Ley de Instituciones de Crédito

[4] Definidas conforme al Derecho Internacional, con sustento de la Carta de las Naciones Unidas Art. 39 y 41.