For over a year now, FIFA has been in the media practically every day with an avalanche of bad news to the point that it is difficult to follow their course. In a nutshell, what are the difficulties encountered by this organization and its Executive Committee?
Every national guideline currently issued on anti-corruption compliance contains a section on the importance of training. Every company committed to anti-corruption compliance develops comprehensive training programs. But the investment is high and calls for careful consideration of the expected return on investment.
Changes in the Spanish Criminal Code under the Organic Law 1/2015 substantially increase corporate criminal liability, introduced back in 2010. With this new reform, a Spanish legal entity could be exonerated from, inter alia, liability for a bribery offence committed by one of its employees. This can be done by proving that the company has previously implemented appropriate surveillance and control measures to prevent or to significantly reduce the risk of such crimes (i.e. a compliance programme).
TD: A European Court of Justice ruling that the EU Safe Harbor data-sharing agreement with the US is invalid, calls for urgent fundamental reassessment of data storage and e-Discovery policies. I can share the following story as an example of how to tackle these new challenges in the sector: – We were asked to help a client who was responding to an investigation by a regulator with global reach. They faced allegations of corruption and were based in a civil law European jurisdiction.
In 2012, Oxford University Press was ordered by the Serious Fraud Office (SFO) to pay a £1.9m fine after two subsidiary companies bribed government officials in Kenya and Tanzania for contracts to supply textbooks. As a consequence, these two subsidiaries were also debarred by the World Bank for a period of three years. As well as the fine imposed by the SFO, Oxford University Press also paid $500,000 to the World Bank and agreed to make a voluntary payment of £2m to educational charities in Africa.
I previously mentioned the four pillars of any effective anti-corruption compliance program. Their effectiveness has been demonstrated in the domain of industrial accidents and can be readily transposed for corruption prevention: tone at the top, training for relevant personnel, tools adapted to risk and controls of the implementation.
A new legal framework in Spain finally installs criminal liability for corporations if they cannot prove they had a coherent compliance program in place when being investigated for a concrete offense. The Criminal Code has been reformed significantly and introduces the regime of corporate compliance with article 31bis. Other articles are new or updated.
Prosecutions of corruption are now an increasing priority of many national governments. This was not always the case. While the FCPA was enacted in 1977, bribery cases were few and far between. This was so until about 2005, when the Oil for Food Scandal and resulting investigations helped change the landscape. Through the Oil for Food Programme’s implementation, Saddam Hussein corrupted a humanitarian project designed to relieve the suffering of the Iraqi people by requiring bribes for the purchase and sale of oil contracts, and demanding gratuities from companies for providing humanitarian supplies to his beleaguered and starving nation.
Recent corruption scandals – including the major Petrobras case – are progressively tainting the image of Brazil as a safe place to start or to entertain business. But the implementation of new anti-corruption legislation is already showing results, opening the eyes of national and international companies to compliance while operating in Brazil. According to the Transparency International Corruption Perceptions Index (TI CPI), Brazil is still one of the most corrupt countries in the world, and occupies 69th position in the ranking of 175 countries.
Some CEOs hesitate to communicate on corruption prevention; others do it in a very innovative and convincing manner... using a lot of imagination!
Sally Yates is the Deputy Attorney General of the United States. That is a very important position – the n° 2 slot in the Department of Justice – and she speaks with great authority. On September 9, 2015, she gave a speech that was simultaneously released as a formal memorandum on the DoJ website, which is in the form of a To/From memorandum to all of the prosecutors within the DoJ. Its title is “Individual Accountability for Corporate Wrongdoing.” In it, Ms. Yates describes in some detail certain principles that US federal prosecutors must follow when addressing corporate crime, and in particular addresses the question of the individual criminal responsibility of corporate officers.
For historical reasons, corruption is a sensitive issue in Slovenia. The state owned banks lost a lot of money during the banking crisis, money that eventually had to be paid back by the taxpayers. In addition, corruption is suspected to be behind a substantial part of that lost money. When, in late 2013, the Bank Assets Management Company took over the majority of non-performing assets from the banks, we were viewed as taking over the corruption as well. We were expected to be non-transparent, trying to cover up for what had happened in the banks. Authorities, politicians and the press were all highly suspicious of the new state owned “bad bank”.
Quick experiment, imagine one of the following events: your football team just won the grand final; or you just watched people admire your work; or you discovered the 10-page document you have just worked on has got corrupted and cannot be saved. Do you respond with measured thought or do you feel an emotion? Probably the latter. Do you move on to the next thing or do you continue to build up emotion about this? Again, probably the latter. Why? Because our emotions respond quicker than our thoughts and emotions are contagious.
On 29 July 2015, the German Government introduced a legislative initiative of the Act on fighting corruption in the health care sector. The draft Act will now be read by the Federal Parliament and it is expected that it will come into effect at the beginning of 2016.
There are in fact some interesting recent decisions in the United States, and I think that one can say that there may be a trend developing there.
The French Central Service for the prevention of Corruption (SCPC) was created in 1993 in accordance with international conventions on the subject. This interdepartmental service attached to the Minister of Justice is headed by a member of the judiciary and staffed by other magistrates (legal, financial and administrative) and senior civil servants of various ministries including Home, Economy, Finance and Education.
I have always emphasized the need for management to state loudly and publicly the company’s ban on corruption. The tone at the top is the base without which an anti-corruption compliance program cannot be efficient. This is also reflected in the fact that all national guidelines addressing the issue of anti-corruption compliance underline the importance of tone at the top.
Years ago, in 2004, when examining how to formulate the first terms of reference for the certification of corporate anti-corruption programs, I noticed that the manner in which companies designed and implemented processes to prevent industrial accidents had many similarities to the one needed to fight corruption.
In response to the recommendations of international organizationsI and the high number of corruption scandals in recent years – including the cases which hit Expo 2015II and the one related to the Venice flood barrierIII – Italy has devoted significant effort to tackling rampant corruption by strengthening preventive measures and spreading a culture of transparency in the public administration rather than concentrating solely on punishing the offences, as has happened in previous years. The main reform enacted in 2012, which received intense criticismIV, has been enhanced by recent laws in 2014 and 2015V.
IT Governance Publishing, in the UK, commissioned me to write a title in their Pocket Guide series, concerning Anti-bribery Management Systems (ABMS) from a BS 10500 perspective. I focused on how a client would go about implementing an ABMS.