The Long Arm of the U.S. Foreign Corrupt Practices Act: Complying with the FCPA in the Vietnamese Landscape

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1 The Long Arm of the U.S. Foreign Corrupt Practices Act: Complying with the FCPA in the Vietnamese Landscape

2 Foreign Corrupt Practices Act: The Act What is the Act? Anti-Bribery Provisions Book and Record Provisions Internal Controls Provisions Legal Exposure? Factors in the Far East Challenges for Compliance Prevention Page 2

3 Foreign Corrupt Practices Act ( FCPA ) Contains anti-bribery, record keeping and internal control provisions Prohibits US persons from making improper payments to foreign government/party officials: US persons include all US based individuals and business enterprises, and non-us based employees of US based business enterprises After the 1998 amendment, FCPA applies to foreign firms and persons who take any act in furtherance of a corrupt payment whilst in the US Also applies to foreign companies that list in the U.S. Imposes record-keeping and internal controls requirements, which apply only to issuers or corporations subject to SEC jurisdiction Page 3

4 FCPA Anti-Bribery Provisions Prohibits corrupt payment of money or any other thing of value to any foreign official in order to assist in obtaining or retaining business A payment or offer/promise to pay money or anything of value to Any foreign government official Any foreign political party official Any official of a public international organization Any other person while knowing that the payment or promise to pay will be passed on to one of the above Any (officer of a) State-Owned-Enterprise Made with a corrupt motive (e.g. for the purpose of influencing an official act or decision) Business Purpose Test Page 4

5 FCPA Anti-Bribery Provisions Made in order to assist in obtaining or retaining business Violations punishable by criminal fines (for a corporation & an individual) and imprisonment Trade restrictions Sanctions Page 5

6 What Is Not Bribery Under the Act? Facilitating payments for routine governmental actions Essentially payments made to insure timely processing of paperwork or other action that would eventually be performed, for example Processing of customs clearance paperwork for perishable goods Although an exception, often difficult to define in policies, etc. Page 6

7 Record Keeping and Accounting Provisions Require corporations to: Keep books, records and accounts in reasonable detail to accurately and fairly reflect transactions and dispositions of assets Page 7

8 FCPA Books and Records Provisions Examples of transactions which accounting records may fail to adequately or accurately disclose political contributions smuggling activities commercial bribes or kickbacks income tax violations customs or currency violations payments to foreign government officials and extraordinary gifts Page 8

9 Internal Control Provisions The FCPA internal control provisions codify existing accounting standards and requires issuers to devise and maintain a proper system of internal controls An individual/entity may be criminally liable if he knowingly circumvents or fails to implement an internal accounting controls system The FCPA does not mandate any particular kind of internal controls system. Rather the test for compliance is whether a system, taken as a whole, reasonably meets the statute s specified objectives Page 9

10 Three Silos of Exposure Department of Justice: FCPA criminal enforcement against domestic concerns, foreign companies listed on U.S. exchanges, and U.S. citizens Securities and Exchange Commission: Civil enforcement against issuers, officers, and employees Private Litigants/Shareholders: No private right of action under FCPA, but trend to allow securities class actions in civil litigation Page 10

11 Factors in Far East Area Environmental / Cultural Factors Emerging economies Quality of business partners Gifts / gratuities, especially in cash, are common Cultural reluctance to question bosses activity Facilitation payments common in many countries Page 11

12 Factors in Far East Area Asian business heavily reliant upon relationships Building relationships is a way of life (guanxi) Will often involve gifts/entertainment/gratuities Many State-Owned-Enterprises Trade with government owned and operated entities may be inevitable Gifts and gratuities may be given to help secure business Page 12

13 Challenge #1: Vietnam is High-Risk Environment Ranked 123 rd on Transparency International s 2007 Corruption Perceptions Index (China is 72 nd ) Page 13

14 Challenge #2: Who is a Foreign Official? FCPA broadly defines term foreign official to include any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization Difficulty of identifying foreign officials compounded by intersection of private and governmental spheres Many major businesses are state-owned or state-controlled Many business people also hold governmental positions Term foreign official broad enough to encompass Airport officials GE InVision Physicians and lab employees at government-owned hospitals DPC, AGA Employees of China National Offshore Oil Company - Paradigm Page 14

15 Challenge #3: Use of Third-Party Agents Use of third-party agents and local partners is common business practice Often hire local consultants, some of which are very small and employ retired employees of potential client, because of claimed relationship with employees of state-owned enterprises Paradigm Principal company may be held liable either vicariously or for failing to maintain sufficient controls for agent s illicit or improper payments Page 15

16 Challenge #4: Responsibility for Joint Venture Partners Joint venture structure, business culture of gifts and entertainments, and need to secure approval from numerous government officials creates particularly high risk for FCPA liability Responsibility for interacting with government officials typically responsibility of Chinese partner, not foreign investor Faro Even where issuer does not have majority interest in domestic or foreign subsidiary, it must still proceed in good faith to use its influence on subsidiary to devise and maintain appropriate system of internal accounting controls ( 78m (b)(6)) Difficult to control and monitor thousands of sales-agents; individual agents may not feel responsible to the company, or understand the company s policies Page 16

17 Companies Most Likely to Have FCPA Issues U.S. or U.S. listed companies that operate internationally, and Engage in business with foreign government entities Operate in high risk countries where bribery is common (e.g. many Far East Area countries) Use intermediaries (agents, distributors, consultants, etc.) Have undertaken acquisitions with international operations Page 17

18 Prevention: What Companies Should Do? Institute and maintain an FCPA Compliance Program Ethics policies (Hotline for complaints) Gift policies Training Compliance auditing and assessment Contracting policies Designate a senior executive responsible for FCPA compliance Respond on a timely basis to any allegations that could constitute FCPA violations Take appropriate action to violations of policies Perform effective due diligence in acquisitions Know Your Client - determine whether you re dealing with an SOE Page 18

19 Red Flags and Susceptible Ledger Accounts Absence of supporting documentation Supporting documentation generic or insufficiently detailed. What types of General Ledger accounts are susceptible to potential FCPA violations? T&E Accounts Consulting Accounts Prepaid Accounts Petty Cash Miscellaneous Accounts Suspense Accounts Inter-company Accounts Page 19

20 Examples of Red Flags These red flags apply to agents, consultants, joint ventures, and contractors that Reside outside the country where the services are to be rendered Demand an unusually high commission without a corresponding level of services or risk Do not have the organizational resources or staff to undertake the scope of work required under the agreement Have a close family connection or other personal or professional affiliation with a foreign government or official Refuse to disclose their complete ownership Refuse to sign representations, warranties and covenants that they have not violated and will not violate the requirements of the FCPA Request that false invoices or other documents be prepared in connection with a transaction Engage in transactions in a country with a general reputation for bribery and corruption Have a lack of transparency in expenses and accounting records Page 20

21 FCPA: not a Binary Regulation Even if transgressions are uncovered, risk of serious penalty can be mitigated Proper book and records were kept An appropriate FCPA Compliance Program was in place Comprehensive and timely action and declaration was made following the discovery Exceptions for facilitating payments Seek DOJ opinion Page 21

22 FCPA Self Reporting Current environment in the U.S. encourages self-reporting of discovered violations Pros Cons Punishment is often less harsh Some control public disclosure Penalties may be stiff in any case If ultimately exposed, consequences can be severe Page 22

23 FCPA References Page 23

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