François Vincke is President of the International Chamber of Commerce (ICC) Anti-Corruption Commission and member of the ETHIC Intelligence Certification Committee.
The International Chamber of Commerce (ICC) issued another document on corporate compliance, the ICC Rules on Combating Corruption 2011. Are companies not already finding it difficult to cope with so much guidance?I understand very well that operational people in the companies are saying: “Please, do not issue new guidance. We are already not able to deal with the existing ones.” And it is with precisely this idea in mind that we at the ICC embarked on the difficult but necessary exercise of drafting an up-to-date set of self imposed rules on anti-corruption. In this text, we wanted to mirror image the core provisions of the OECD Anti-Bribery Convention (1997) and the United Nations Anti-Corruption Convention (2003). We also intended to consolidate in the new ICC Rules the major progress made in recent years by business in their corporate practice. We will furthermore seek to reach with all sister organizations a consensus on what should constitute our common recommendations with the aim of reaching a common document. In the end, this should be the beginning of a simplification process rather than another round of “complexification”.
What are the major innovations of this guidance? Are they going to make a difference in companies’ day-to-day operations?I would like to mention one subject matter that really can have an impact on business life and that is the vexed and much debated question of facilitation payments. We have seen in recent past, in that context, a double evolution: first, that companies, which have a leadership position in matters of integrity, have chosen to ban those payments altogether, second, that companies, even small ones, appear to be unhappy with the largely diverging treatment of such small payments in different jurisdictions, making an integrated marketing policy harder to formulate. We have also been impressed by the clear-cut and very restrictive stance taken in the Guidance of the Ministry of Justice on the UK Bribery Act 2010 on such payments. We took, therefore, the more radical position to say to the companies: “Abstain from all facilitation payments, but if your employees are facing problems of health, security or safety, it will be a matter of good common sense to tolerate them but do not forget to include them, in this case, on the books”.
Is it true that these ICC Rules are only applicable to large companies?There seems to be a general belief that small or medium-sized enterprises are exempted from integrity norms, because they would not have the resources necessary to set up an efficient compliance program. This is mistaken. One should stop being complacent on that point and start reaffirming that anti-corruption standards are the same for every company, large, medium-sized and small. What makes a difference though is that every company, having assessed the corruption risks it is facing and having evaluated its strengths and weaknesses in that context, has to set up its own corporate compliance program proportionate to its size, risks and resources. So the standards are the same for everybody but the preventive measures, to be adopted by the individual companies, will be differentiated according to their sizes and means. The ICC Rules on Combating Corruption 2011 say precisely that.
How will the ICC follow up on the implementation of these new Rules?At the ICC, we do not ask the CEOs of our members to sign off on a document. It is not part of our practice and has never been part of our traditions. I cannot imagine that we would have to go around to all companies in the world to obtain a signature under a revision of the INCOTERMS, the UCP or any other self-regulatory document prepared by ICC. This would simply not be feasible. But in the field of integrity standards, we want to go another and new route and urge companies to incorporate by reference or in full in all their commercial contracts the main provisions of the ICC Rules on Combating Corruption (namely Part I thereof). I think that this will be much more efficient than asking for a signature under a general statement, because in such a way the anti-corruption standards become part and parcel of the companies’ transactional work. In this context, we are working very hard at the drafting of an ICC Anti-corruption Clause 2012, which will make this incorporation in the contracts effective. I hope it will become a reflex of the business people, their company lawyers and their external advisors to use this incorporation Clause in their contracts, as they do already with e.g. the ICC Arbitration Clause.
What was the reaction of ICC members when you first began reformulating the Rules on Combating Corruption? Enthusiasm or polite resignation?There was no polite resignation at all. We received so many comments, proposals for modifications and amendments that we had to circulate the successive drafts several times to the ICC National Committees, the individual member companies and the experts of the Commission on Corporate Responsibility and Anti-corruption. Let me confess to you that at a certain point in time, I feared that we would be punished by our success and that we would not be able to deliver our product in time for the G20 Leaders Summit in Cannes. So in the end, I had to show a little bit more leadership and courage to conclude the debate. But the most positive conclusion is that the corporate community is not “blasé” at all and that it follows very carefully and with a lot of positive interest the evolution of corporate practice.
Are you witnessing real improvements in corporate practice?Definitely, yes. I started working on these matters at the end of 1994. In the first years progress was quite modest. On the contrary, progress achieved in recent years has been impressive. Nobody is naive enough though to believe that everything is now under control. Still a lot of work is to be done, also on the side of the authorities. But now it is no longer the time to produce additional legislation or guidance; now it is the time for implementation and therefore training/education of the compliance specialists. This is the biggest challenge which we face.
How does certification fit into the context of the ICC Rules on Combating Corruption 2011?It should be no surprise to the readers of the ETHIC Intelligence Newsletter that certification has received a place of choice in the new ICC Rules and especially in our recommendations on what should be part of an efficient compliance program. Every company will have to determine from a risk-based management approach which kind of measures it wants to take in the framework of its compliance program. Certification, verification or assurance are mentioned as a primary means to improve the compliance program a company is setting up. ICC recognizes that certification has in recent years become a constituent part of the compliance landscape.
- Contact François Vincke
- Click here to download a copy of the ICC Rules on Combating Corruption 2011
- Click here to go to the ICC Anti-Corruption Commission website
Tags : corporate compliance, ICC innovations, integrity standards, certification of compliance policy
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