by James M. Lord and Sarah W. WalshThe new Anti-CorruptionEthics & ComplianceHandbook for Business»» The new Handbook provides useful “best practices” guidance to organizations from the company’s perspective.»» The guidance from regulators and companies is largely consistent.»» Having a robust anti-corruption compliance program is critical.»» Key components should include periodic risk assessments and third-party due diligence vetting process.ILordn November 2013, the World Bank andits partners released the Anti-CorruptionEthics and Compliance Handbook forBusiness (the Handbook), and just prior to itsrelease, the Department of Justice (DOJ) andthe Securities and Exchange Commission(SEC) announced plans toaggressively continue their pursuitof both companies and individualswho violate the Foreign CorruptPractices Act (FCPA).In his keynote address atthe 2013 FCPA Conference, SECCo-Director Andrew Ceresneystated, “The groundbreakingcases that we have brought have sent anunmistakable message that most companieshave heard loud and clear—obey the FCPA,and ensure that your employees are sensitiveto FCPA issues, or face stiff penalties andother consequences.” Ceresney further statedthat over the past year, the SEC recoveredmore than 240 million in penalties andonly expects FCPA violations to become“increasingly fertile ground” due to theDodd-Frank Act whistleblower programthrough which the SEC is increasinglysourcing its own cases.1At this same conference, the DOJsimilarly forecasted an increase in itscriminal FCPA enforcement actions. It notedthat it was currently investigating more than150 cases of potential FCPA violations andthat it expected to bring “very significantcases, top-ten-quality type cases,” in 2014.2 Ifone examined the top ten FCPA settlementagreements in terms of total fines/penaltiespaid, they range from the 137 millionpenalty imposed on Alcatel-Lucent to the 800 million penalty imposed on Seimens.3The 2014 enforcement action against Alcoaresulted in total penalties of 384 million,catapulting it into fifth place in the rankingsof highest FCPA penalties imposed. So, therecent pronouncement from the DOJ that itexpects to bring “top-ten-quality type cases”in 2014 is significant indeed!This pointed warning from regulatorsleft many companies looking for additionalguidance with their respective FCPAcompliance efforts, and they were left asking,“How does my company know whether 1 952 933 4977 or 888 277 4977www.corporatecompliance.orgCompliance & Ethics Professional June 2014»» Anti-corruption training should incorporate examples of best practices delineated in the Handbook.73
our compliance program is sufficient?” and“How many anti-corruption safeguardsare enough?” Now, in addition to publicDOJ settlement agreements (i.e., deferredprosecution agreements and non-prosecutionagreements), DOJ press releases, DOJ opinionprocedure releases,4and A Resource Guideto the U.S. ForeignCorrupt Practices Act(the Resource Guide,jointly published byDOJ and the SECin November 2012),companies can referto the Handbook.Significantly, unlikethe Resource Guide,which was developedby regulators,the Handbook wasdeveloped “bycompanies for companies” 5 and facilitatedby three international governmentalorganizations: the Organisation for EconomicCo-operation and Development (OECD), theUnited Nations Office on Drugs and Crime(UNODC), and the World Bank.Author’s Note: The cross-section ofcompanies, non-governmental organizations(NGOs), and professional services firmsthat contributed to the Handbook may notadequately represent a cross-section of allcompanies that face anti-corruption concerns.Among the contributors are three of the“Big Four” accounting firms, four law firms(two domestic firms and two internationalfirms), two consulting firms, seven NGOs,and nine companies. Of the nine companies,three are in the healthcare/medical deviceindustry; three are in the engineering orconstruction industry; and one each in thefood manufacturing, telecommunications,and publishing industries. These companiesrange in size from 3,500 to well over 150,000employees and have offices in all cornersof the globe. Despite this breadth, the bestpractices represented in the 12 main elements(discussed below) and corresponding casestudies simply cannotspeak for every industryor represent everytype of organizationthat might be affectedby FCPA issues. Thisechoes the refrain ofboth the Resource Guideand the Handbook—thereis no substitution fora tailor-made anticorruption programthat is specific to theunique footprint of therespective organization.Compliance & Ethics Professional June 2014Among thecontributors are three ofthe “Big Four” accountingfirms, four law firms(two domestic firmsand two internationalfirms), two consultingfirms, seven NGOs, andnine companies.74www.corporatecompliance.org 1 952 933 4977 or 888 277 4977Overview of the HandbookThe stated purpose for the Handbook was toaddress the concern that “a myriad of existinginternational principles for business can beconfusing, especially for small and mediumsized enterprises with limited resources.”The Handbook attempts to define, from theperspective of companies, best practices inanti-corruption compliance. It is divided intothree main sections, followed by an annex.The first section contains a brief overview ofthe existing international legal frameworkfor combating corruption. This includes twointernational accords and four regional levelinstruments that support criminalizing avariety of corrupt practices, and in someinstances, aim to hold not only the corruptorganization, but certain legal persons liablefor criminal conduct.6The second section provides an overviewon the importance of risk assessment from the
The 12 main anti-bribery elementsWhat follows are the 12 main anti-briberyelements, along with a select summary of bestpractices as excerpted from the case studies.Support and commitment from seniormanagement for the preventionof corruption:·· Leadership needs to demonstrate a strong,visible, active commitment to the antibribery program.·· The board and CEO should be fullyengaged in the process and foster a cultureof compliance with the company’s anticorruption policy.Developing an anti-corruption program·· Develop a program with the consultationof the company’s employees that is tailoredto the organization’s size and specificindustry risks and requirements.·· Clearly prohibit bribery of any nature,ensuring proper internal controls andauditing mechanisms are in place tomonitor compliance.·· Examples of best practices include a globalcode of conduct containing simple andstraightforward language applicable to allemployees (including at subsidiaries) in allcountries where the company operates thatincorporates real-life compliance examplesinto the Code.Oversight of the anti-corruption program·· The board has responsibility for oversightof the compliance program and the CEO isresponsible for seeing that the program isimplemented effectively.·· Senior officers should be assigned tooversee the program and be providedwith an adequate level of autonomyand sufficient resources, and reportperiodically to the board of directors orother supervisory body on the success ofthe program.Clear, visible, and accessible policyprohibiting corruption·· Establish a clearly articulated and visiblepolicy that prohibits bribery in any form,carried out either directly or through thirdparties.·· The policy should provide guidance onthe meaning and scope of the prohibitionagainst bribery, particularly with respectto “high risk” aspects of the company’sbusiness operations.Detailed policies for particular risk areas·· Develop policies and procedures toaddress the most high-risk and prevalentforms of bribery. 1 952 933 4977 or 888 277 4977www.corporatecompliance.orgCompliance & Ethics Professional June 2014perspective of how to better understand riskexposure and the best practices to minimizeexposure. This section outlines how to: (1)establish a risk assessment process, (2) identifycertain risk factors, (3) rate inherent risks,(4) identify and rate mitigating efforts, (5)calculate the residual risk, and (6) develop anaction plan moving forward.Arguably the most practical guidance tocompanies is the third section. The authorscompare the principles set forth in sixrecognized business instruments on antibribery7 and distill from those instruments12 “main anti-bribery elements.” This sectionthen illustrates each of those elementsin practice through one or more real-lifecase studies.The annex includes both a chartcomparing the 12 main elements against alleight business instruments referenced in theHandbook and a sample compliance checklistfor companies to consider upon review oftheir own anti-bribery programs.875
Compliance & Ethics Professional June 2014·· Ensure that all gifts, entertainment, andhospitality are reasonable, and that bonafide business expenses cannot be perceivedas intending to improperly influence theoutcome of business transactions; andensure that management is involved in theapproval process and that the process iswell-documented.·· Ensure that charitable or politicalcontributions and sponsorships aretransparent and not used as a subterfugefor bribery.·· Prohibit facilitation payments sincesuch payments are illegal under laws ofmost countries.·· Closely monitor and regulate actual andpotential conflicts of interest.·· Examples of best practices includeusing web-based approval systemsfor gift and entertainment expenses;separating the “leisure” part of “foreigndelegation” trips from the businesscomponent; and drafting well-definedpolicies that prohibit reimbursement ofunreasonable or unnecessary expenses orcash reimbursements.76Application of the anti-corruption programto business partners·· Prohibit bribery in all businesstransactions that are carried out throughthird parties, subsidiaries, joint venturepartners, agents, representatives,consultants, brokers, contractors, suppliers,lobbyists, and other intermediaries.·· Where the company has effective controlover a third party, it should implementits compliance program with respectto that third party; and where it lacks“effective control,” it should undertakewell-documented risk-based due diligenceprior to entering into a relationshipwith the third party, and encourage thewww.corporatecompliance.org 1 952 933 4977 or 888 277 4977third party to implement an equivalentcompliance program.·· Require third parties to certify they will beanti-corruption compliant and to provideaudit rights to the company; and includea provision in the contract allowingfor termination of the relationship ifthe third party violates the company’santi-corruption policy.·· Examples of best practices includerequiring third parties to complete aquestionnaire; using risk-assessment,business justification, and red-flagchecklists to identify the opportunitiesand incentives for corruption; trainingthird parties on the company’s code ofethics and anti-corruption policy; ensuringthird parties understand their contractualrequirements as it relates to anticorruption compliance; and conductingrandom audits of third party records.Internal controls and record keeping·· Maintain an effective system of internalcontrols with accessible, transparent booksand records, including prohibiting the useof “off the books” accounts.·· Conduct regular independent audits ofinternal controls to assure effectivenessand of company books and records todetect any suspicious transactions.·· Examples of best practices includesegregation of duties of those in a financerole; requiring multiple signatures and/orvarious levels of approval on paymentsexceeding a defined dollar thresholdand/or falling into certain specifiedcategories (e.g., commission paymentsto agents or travel and entertainmentexpenses for government officials); andthe establishment of specific financialcontrols for the disbursement ofpetty-cash payments.
········which employees can report in theirnative language violations and/orsuggest improvements to the program inconfidence and without fear of retaliation.Create global awareness of the company’swhistleblower policy, including theavailability of the hotline, throughsuch methods as emails, intranetpostings, company newsletters, andposter campaigns.Communicate to all personnel that theyhave a duty to report suspected violationsand provide a list of designated contacts towhom they can report a concern.Communicate to employees the outcomeof an investigation (where appropriateand legally permissible) and/or messageslearned from matters investigated thatfeature sanitized versions of cases.Report to the governance committee (e.g.,Audit Committee of the Board) on policyawareness efforts and incident reportingprocesses and trends.Promoting and incentivizing ethicsand compliance·· Human resource practices, includingrecruitment, promotion, training,performance evaluation and recognition,should clearly reflect the company’scommitment to an anti-bribery program.·· Ethics and compliance should be an integralpart of the company’s strategic plan.·· An example of best practices includesincorporating compliance and ethicsobjectives into performance evaluationsand compensation decisions.Addressing violations internally andexternally with authorities·· If potential misconduct is identified, thecompany should promptly and carefullyinvestigate internally to ascertainthe veracity of the allegations and tounderstand whether there appeared to beany violations of law, without alerting anypotential wrongdoers to the investigation.·· Consider self-reporting the violation toauthorities and encouraging appropriatecooperation with investigating andprosecuting authorities.Seeking guidance—Detecting andreporting violations·· Provide secure, confidential, andaccessible channels (e.g., toll-free hotlineand/or web-based service) throughPeriodic reviews and evaluations of theanti-corruption program·· Establish feedback mechanisms andinternal processes supporting thecontinuous improvement of the program. 1 952 933 4977 or 888 277 4977www.corporatecompliance.orgCompliance & Ethics Professional June 2014Communication and training·· Establish and maintain effective meansto communicate facts relating to thecompany’s anti-bribery program andensure periodic internal and externalcommunication about updates andchanges to the program.·· Provide documented anti-corruptiontraining to all directors, executives,managers, employees and agents tailoredto their duties and responsibilities, and,as appropriate, to contractors, suppliers,and employees of joint venture partnersand subsidiaries.·· Examples of best practices includeconducting targeted in-person training ofkey personnel (e.g., senior site managersand regional controllers) utilizing a “trainthe trainers” methodology; incorporatingreal-life scenarios and hypotheticalsinto the training, as well as quizzes;and conducting the training in the locallanguage of the trainees.77
·· Review and update risk assessments of theprogram periodically and when necessaryto meet changed circumstances.·· Senior management should implementa systemic approach to monitoring theprogram, including for effectivenessin preventing,detecting,investigating,and respondingto allegations ofmisconduct, andreport its findingsto board.·· Consider retainingan independentthird party toperiodically auditthe program.·· An example of bestpractices includes, as a component of acompany’s monitoring program, a selfassessment by senior management of thelevel of compliance with the company’santi-corruption compliance program.9adequate resources; appropriate third partydue diligence; an accessible corporate codeof conduct; appropriate risk assessment;employee incentives, including rewardsand disciplinary measures; a means ofconfidential reporting and conductinginternal investigations;and periodic testing,review, training andcontinuing advice.10Although theHandbook expandsupon some of theguidance in the ResourceGuide, the two guidesgenerally agree onwhat companiesshould strive for interms of best practices.Furthermore, bothguides use scenarios to demonstrate permittedand prohibited practices; however, theHandbook goes beyond the hypotheticals aspresented in the Resource Guide (presumablydrawn from regulatory enforcement actions)and pulls from real-life case studies froma company’s perspective. In that sense,the Handbook is a nice compliment to theResource Guide.In its introduction, the Handbook containsa disclaimer that it “is not intended to createnew standards or represent any form oflegally binding requirement for businesses.”Notwithstanding this disclaimer, now thata best practices manual (developed “bycompanies for companies”) exists, could acompany face enhanced regulatory scrutinyfor failing to implement the best practicesrecommended by its peers in the Handbookif one of its employees runs afoul of theFCPA? Since the Handbook’s place withinFCPA guidance is still so new, it remains tobe seen precisely how the DOJ and SEC willinterpret a company’s use (or disregard) of theAlthough the Handbookexpands upon someof the guidance in theResource Guide, the twoguides generally agreeon what companiesshould strive for in termsof best practices.Compliance & Ethics Professional June 2014What the Handbook means for companies78Notably, the 12 main elements discussedin the Handbook are largely consistent withthe “hallmarks of an effective complianceprogram” in the DOJ/SEC Resource Guide.The FCPA Resource Guide identifies threecentral questions when analyzing an effectivecompliance program:1. Is the company’s compliance programwell designed?2. Is it being applied in good faith?3. Does it work?In addition to the above questions, theFCPA Resource Guide considers the followingfactors: commitment from senior managementand a clearly articulated policy; a compliancedepartment with oversight, autonomy andwww.corporatecompliance.org 1 952 933 4977 or 888 277 4977
Handbook. Where the guidance in the Handbookis consistent with that in the Resource Guide, itappears to define both regulatory and privatesector expectations in terms of best practices.However, where the Handbook providesinconsistent guidance, it may be precariousfor companies to follow the Handbook andignore the Resource Guide. For example, theHandbook’s suggestion that “the level of risktolerance or risk appetite” of a particularcompany should be a key determinant ofwhether a corruption risk response is neededseems a bit at odds with the Resource Guide’spremonition that “[a]s a company’s risk forFCPA violations increases, that businessshould consider increasing its complianceprocedures . When assessing a company’scompliance program, DOJ and SEC takeinto account whether and to what degree acompany analyzes and addresses the particularrisks it faces.”11ConclusionAlthough the Handbook’s impact is not yetclear, it is a tool that every organization facingFCPA risk should review in conjunctionwith the Resource Guide. Adherence to (andconducting training on) the Handbook’s 12main anti-bribery elements, together with theResource Guide’s Hallmarks for an EffectiveCompliance Program, can better equip acompany in developing a robust complianceprogram that hopefully will keep regulatorsfrom knocking on their door. 1. Andrew Ceresney, Co-Director of the Division of Enforcement, SEC:Keynote Address at the International Conference on the ForeignCorrupt Practices Act. November 19, 2013 in Washington, DC.Available at http://1.usa.gov/Q6FBbq2. Charles E. Duross, Deputy Chief of the Fraud Section, Departmentof Justice: Address at the International Conference on the ForeignCorrupt Practices Act. November 18-21, 2013 in Washington, DC.3. See http://1.usa.gov/1idWa074. See http://1.usa.gov/1iiUpKQ5. See Handbook pgs. 6-7.6. On an international scale, these instruments include the UnitedNations Convention Against Corruption (est. 2005 with 168 parties)and the Convention on Combating B
(NGOs), and professional services firms that contributed to the Handbook may not adequately represent a cross-section of all companies that face anti-corruption concerns. Among the contributors are three of the “Big Four” accounting firms, four law firms (two domestic firms and two international f
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