Fiona Coffey is the author of a report from the Institute of Business Ethics which examines the role of those working in Ethics and Compliance in improving corporate culture. She discusses her research below.
There have been a number of corporate scandals in recent years that have got people asking whether businesses can reform themselves and promote ethical behaviour from the inside.
The law of December 6, 2013 modifies numerous provisions of criminal law and criminal procedure. These amendments were the result of a government objective to combat more effectively economic and financial wrongdoing and, in particular, corruption. This willingness to introduce tougher measures is evidenced by harsher sanctions and enhanced means of investigation now at the disposal of the investigative services.
Customs clearance is the key point of international business. Whatever the value of the goods, shipment size, or shipper and consignee experience, “clearing goods” is an everyday challenge usually sub-contracted to brokers. They face pressure from both the customer and the relevant administration to simply execute their daily job. Their customer may be the exporter, the importer, both or neither. It could be their own agent in another country. All expect them to clear goods as fast as possible and avoid controls by customs authorities. This is where corruption risk appears.
As the ERM (Entreprise Risk Management) industry continues to evolve, corporate responses to enterprise risk vary immensely. Companies use a number of overlapping frameworks to understand and respond to risk. Most of these frameworks are one-dimensional focused on prevention and internal controls. No surprise, then, that the organizational response to risk is so fragmented: Many companies view risk management as a cost and fail to incorporate it into strategic and commercial considerations. In beefing up risk management functions, corporations have generally hired risk management specialists from the financial services industry, perpetuating a quantitative, market-based focus.
This year, following the annexation of Crimea by Russia and other military activities in Southern Ukraine, sanctions were imposed by the US and EU. These new sanctions, along with Russia’s self-imposed food ban, began to reshape internal markets and to alter corruption levels in the country. Just prior to that, President Putin’s anti-corruption campaign which had kicked off in 2011 and was meant to make up for the lack of deep structural reforms and restrain certain key players, produced mixed results.
The following is our second Q & A with Richard Bistrong.
I think in the most general sense it is to attain some sort of market advantage with the goal of gaining or retaining business, through corrupt means. As to why third parties are involved, that is an interesting question.
This July Transparency International (TI) USA published its comprehensive report Verification of anti-corruption compliance programs in which it explores ways companies can restore the public’s confidence in self-regulation and “strengthen the standing and reputation of corporations with investors, business partners and the public at large”.
The fact the bank pleaded guilty was unusual, although the Credit Suisse example a few months earlier foreshadowed that US authorities might not let another bank off with a non-criminal outcome such as a Deferred Prosecution Agreement. The size of the payment was striking though, and required some explanation.
” Every time an article on offsets appears in the international press, it is linked with corruption”
The World Trade Organization defines offsets as: – “Measures used to encourage local development or improve the balance-of-payments accounts by means of domestic content, licensing of technology, investment requirements, counter-trade or similar requirements”. Offsets are only applied to government procurement, mainly in the defence, energy, transport and telecommunications sectors.
In Germany, where corporate criminal liability does not exist and wrongdoing is imputed to the individuals themselves, there is no statutory law specific to compliance officers. However, case law exists. Anyone can be liable as long as their job in the company is to prevent crimes from happening (irrespective of the job title). According to the law, the individual must take steps to prevent a crime from happening (intent of 3rd degree, where a compliance officer sees it as highly probable that a crime will be committed but does nothing to prevent it).
The Excellence in Compliance Day was very insightful for me. I am the Director of Corporate Responsibility at Royal HaskoningDHV, an international engineering firm. Recently a decision was taken to include the role of Group Compliance Officer in this position (instead of the position of the Corporate Secretary). I was already a member of the Integrity Council, but now the GCO role is fully ‘on my plate.’ I have had several meetings with Local Compliance Officers and the Integrity Council, and I have been reviewing our Integrity Management System and international developments in anti-corruption. The EIC Day was very helpful to get the latest in that respect. It was an opportunity to share knowledge and experiences with legal and business experts.
Ten percent of senior executives have been asked to pay a bribe according to EY’s latest Global Fraud Survey. Nearly 40% see bribery and corruption as widespread in their markets. And 41% of senior executives are willing to justify unethical practices to help their business survive. 11% of CEOs also felt misstating financial performance could be justified. Given these alarming statistics, it is almost inevitable that businesses with global operations are in some way interacting with individuals or entities that do not share the same ethical approach to business as they may expect.
Contrary to preconceived ideas and popular belief, corruption is not a matter of nationality. We often hear criticism of certain countries like Russia, China and other developing countries and their corrupt behavior at all levels of society. In reality the problem is more complex and concerns the environment more than the people. It is apparent that the rate of corruption is linked to the economic situation. A country with a high rate of growth will be more susceptible to corrupt behaviors.
Jointly organised by the Italian Co-Chair of the G20 Anti-Corruption Working Group and the OECD, this conference built on the conclusions of the G20 and B20 discussions over the past three years, implementing the G20 priority for closer co-operation between governments and the private sector.
In November 2012, EADS Group (now Airbus Group) requested a review of its anti-corruption program and has obtained in February 2014 ETHIC Intelligence certification for its entire operations. As a first step, the Group applied for Compliance Program Certification to ensure that the design of its program was adapted to the Group’s specific risks and in line with international best practices standards.
The Basel Institute’s International Centre for Collective Action (ICCA) will hold a conference entitled “Collective Action: Going further together to counter corruption” on 26-27 June 2014 in Basel, Switzerland.
The conference seeks to take stock of anti-corruption Collective Action, presenting examples from across the globe and examining methodologies for making it a successful tool in the fight against corruption. It is also hoped that new potential Collective Action initiatives may be formed by participants in attendance, through the use of several interactive sessions on themes such as facilitation payments, intermediaries and other cross-sectoral issues.
Originally, the law which refers to the individual´s legal right to anonymity in publishing information catered only to the public sector. However, due to the increasing outsourcing of education and healthcare services to private operators whilst funding remains public, calls have been made to meet the needs in these particular areas. Whistleblowing in practice is per se a product of this law. The expansion of the law covers private educational and healthcare organizations including medical and infant and elderly care and should also allow investigative journalism to player a greater role, prevent corruption and inefficient use of government funding.
The Esquenazi case involved a Miami telecommunications company called Terra Telecommunications (Terra) – whose business involved re-selling international long distance telephone call time and two of its executives, Joel Esquenazi and Carlos Rodriguez, who were involved in a scheme to bribe various persons working for Telecommunications D’Haiti, S.A.M. (Teleco), which provides telecommunications services in Haiti. Esquenazi and Rodriguez were charged in a 21- count indictment with conspiracy to violate the FCPA and commit wire fraud, conspiracy to launder money, and substantive counts of FCPA violations, wire fraud, and money laundering.
Richard Bistrong spent much of his career as an international sales executive. He was the Vice President of International Sales for a large, publicly traded manufacturer of police and military equipment, which included residing and working in the UK. Prior to that, he was the Executive Vice President (and founding family member) for one of the largest global manufacturers of bullet resistant vests for the police and military. In 2007, as part of a cooperation agreement with the United States Department of Justice and subsequent Immunity from Prosecution in the UK, Mr. Bistrong assisted the United States and other governments in their understanding of how FCPA violations occurred and operated in international sales.
In 2012, Australia proposed the development of an ISO standard for compliance programs based on the national Australian standard which has existed since 1996. This proposal was accepted by the members of ISO and a Project Committee (PC) was established to develop the standard. ISO/PC 271 “Compliance Management” is chaired by Martin Tolar, Managing Director of the GRC Institute (formerly the Australasian Compliance Institute) and the secretariat is provided by the Australian standards body SA. The ISO 19600 is being developed as a guideline for compliance management and not as a specification that provides requirements.