International Anti-Corruption Regulatory Trends And How To Prepare For Increased Foreign Enforcement

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1 International Anti-Corruption Regulatory Trends And How To Prepare For Increased Foreign Enforcement Ariana N. Sarabia Gary R. Chadick Partners at McKenna Long & Aldridge LLP Contact Information: Ariana Gary mckennalong.com

2 Overview There has been a global increase in enforcement against corrupt business activities. More foreign governments are passing anti-corrupt legislation. Foreign regulators have begun to enforce their own existing domestic anti-corruption laws, sometimes in coordination with American investigations. Global watchdogs are highlighting certain high-risk industries and geographic locations. Here in the U.S., FCPA settlement amounts increased in Chinese cases top the list for ongoing FCPA investigations. Despite progress, enforcement is still poor in some surprising countries. 2

3 More Foreign Governments Are Passing Anti-Corruption Legislation UKRAINE Ukraine has a new anti-corruption law. New anti-corruption bureau is expected to be different from prior ineffective agencies. BRAZIL Brazil s anti-corruption bill Passed in the House of Representatives. Brazil has an extraordinary number of anti-bribery enforcement authorities. 3

4 Foreign Regulators Have Begun to Enforce Their Own Existing Domestic Anti-Corruption Laws, Sometimes In Coordination With American Investigations Despite the lack of significant regulatory reform in Asia, many regulators are stepping up enforcement efforts, perhaps signaling the public s intolerance with the degree of corruption. HONG KONG In Hong Kong, the Independent Commission Against Corruption (ICAC) is increasing investigations under the Prevention of Bribery Ordinance (POBO), which is broader in scope than the FCPA. The Anti-Money Laundering and Counter-Terrorist Financing Ordinance (AMLO), effective 2012, is finally being enforced. U.S. and Hong Kong are working together (e.g., recent extradition of an executive charged with commercial bribery from the U.S. to Hong Kong to face trial). CHINA The Chinese Communist Party launched a high-profile anti-corruption campaign against public officials and private businesses. China is focusing on certain high risk sectors in accordance with the joint judicial interpretation by the Supreme People s Court and the Supreme People s Protectorate regarding aggravating circumstances pertaining to bribery of supervisory officials in key industries, including: pharmaceuticals medical devices food products energy 4

5 Global Watchdogs Are Highlighting Certain High-Risk Industries and Geographic Locations According to the December 2014 Foreign Bribery Report of the Organization for Economic Cooperation and Development ( OECD ), two-thirds of foreign bribery cases occurred in these four sectors: extractive/mining (19%), construction (15%) transportation and storage (15%) information and communication (10%) 5

6 Here In The U.S., FCPA Settlement Amounts Increased In 2014 In 2014, ten companies paid $1.56 billion to resolve FCPA cases. In 2013, twelve companies paid $731.1 million to resolve FCPA cases In 2012, twelve companies settled FCPA enforcement actions by paying a total of $259.4 million In 2011, 15 companies paid $508.6 million In 2010, 23 companies paid $1.8 billion In 2009, 11 companies paid $644 million In 2008, 11 companies paid $890 million In 4 of 6 corporate FCPA enforcement actions where an analysis was possible, the DOJ agreed to a criminal fine below the minimum range suggested by the sentencing guidelines. In these 4 actions, the average was approximately 29% below the minimum guidelines range and the distribution range was 9% below the minimum guidelines range (Avon) to 53% below the minimum guidelines range (Alcoa). In 2 corporate FCPA enforcement actions in 2014 (Alstom and Marubeni), the company paid a criminal fine within the guidelines range. 6

7 Chinese Cases Top The List For Ongoing FCPS Investigations There are currently over one hundred ongoing FCPA investigations. The alleged FCPA violations pertain to corruption in the following countries: China 40 investigations Brazil investigations Russia -- 9 investigations Libya -- 7 investigations India -- 7 investigations Poland 4 investigations Mexico 4 investigations Angola 4 investigations Saudi Arabia 4 investigations South Africa 4 investigations Italy 4 investigations Argentina 3 investigations Germany 3 investigations Kenya 3 investigations Romania 3 investigations Uzbekistan 3 investigations See january.html#sthash.cjl9ipr4.dpuf 7

8 Countries with Surprisingly Poor Enforcement France: In December 2014, the OECD highlighted France's lack of initiative in cases involving French enterprises and bribery. Turkey: Turkey s parliament voted to acquit four former ministers who faced graft charges. Transparency International slammed the vote. 8

9 How To Prepare For Increased Foreign Enforcement Perform A Compliance Risk Assessment of Your Company s Compliance With All Applicable Anti-Corruption Laws Identify High, Medium, And Low Risk Foreign Third Parties Understand Where Your Company Does Business Internationally And Foreign Third Parties Critical To International Business Understand The Anti-Corruption Laws And Enforcement Trends In Those Countries 9

10 Elements Of An Effective Anti-Corruption Compliance Program Develop An Effective Anti-Corruption Compliance Program Assign Senior Leadership Perform the Compliance Risk Assessment Have Explicit Company Policies, Processes And Internal Controls Provide Communication And Training (Employees And Third Parties) Conduct Due Diligence Of Foreign Third Parties, Implement A Review And Pre- Contract Approval Process And Include Anti-Corruption Terms In The Contract Monitor And Audit Third Party and Employee Adherence to Contract and Internal Processes Provide An Ethics Help/Hotline Take Disciplinary and Corrective Actions When Necessary Conduct Effectiveness Review Of The Program 10

11 Elements Of An Effective Risk Based Third Party Due Diligence Program Develop An Effective Risk Based Due Diligence Program Use A Questionnaire To Obtain Business, Ownership, Financial and Other Information From The Third Party Obtain Financial, Business License Registration Or Other Due Diligence Information From Commercial Vendors Trace International, Dun And Bradstreet, Kreller, etc. Perform Phone Or Face To Face Interview and Training Call Or Visit The U.S. Embassy Check Business References (Other U.S. Companies Preferred) Obtain An In-Country Lawyer Legal Opinion Check Denied Party List Through Commercial Vendors Such As Management Dynamics Or Thomson Reuters World Check Conduct Internet Searches For Ethical Or Dishonest Conduct 11

12 Elements of An Effective Contracting Process Develop An Effective Contracting Process An Internal Review And Approval Process Before Contracting (Assess the Integrity and Reputation Of The Third Party Based On The Due Diligence Materials) Pre-Contract Training On Anti-Corruption Laws And Company Policies And Processes A Contract Containing Anti-Corruption Covenants, Indemnification, Termination and Audit Rights Provisions Monitoring Activities And Adherence To The Contract Establish A Risk Based Contract Renewal Process 12

13 Other Elements Of An Effective Anti- Corruption Compliance Program Internal Controls Need To Be Put In Place Bank Accounts Clear Delegation Of Authority And Internal Controls For Creating Account And Withdrawing Cash Sales Rep/Consultant Invoices Need To Match Invoices To Compensation Terms In Their Contracts Books And Records Need To Be Accurate And Fairly Represent The Transactions Payments Need To Be Accurately Described In Your Company s Books And Records Facilitation Payments Need To Be Clearly Identified As Such Training And Periodic Audits Needed 13

14 How MLA Can Assist Clients Review Your Company s Existing Anti-Corruption Compliance Program And Make Enhancement Recommendations Strengthening Particular Elements Of Your Program Provide Country Analysis On Anti-Corruption Laws And Enforcement Trends Enhance Existing Policies, Processes Or Contract Terms Strengthen Your Risk Based Due Diligence Program Prepare Or Provide Anti-Corruption Training And Communication Materials Conduct Investigations Of Noncompliance Allegations Provide Recommendations And Draft Disclosures To The Government If Necessary 14

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