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.
In the previous chapter, I insisted on the importance of adapting an anti-corruption compliance program to the local social and cultural environment while respecting a zero tolerance for corruption.
Alison Taylor spent 11 years working on anti-corruption intelligence and investigations at Control Risks, and on helping companies manage corruption challenges at Transparency International. She now works at the sustainability non-profit consultancy, BSR, exploring links between corporate approaches to risk, ethics, transparency and corporate responsibility. She has recently completed substantive academic research exploring organizational culture in corrupt companies. This is designed to inform the evolving debate about the limits of traditional corporate compliance approaches to the anti-corruption challenge.
In its decision GSSt 2/11 of 29 March 2012, the German Federal Supreme Court held that a resident medical practitioner admitted for statutory healthcare supply, in exercising his/her respective duties, acts neither as a public official nor as an authorized representative of the statutory healthcare insurance. Hence, any incentive granted to him/her for the prescription of certain pharmaceuticals by resident medical practitioners cannot be subject to criminal liability under the provisions on corruption of public officials in sec. 331 ff. of the German Criminal Act (Strafgesetzbuch, “StGB”) or sec. 299 StGB on “Bribery and corruptibility in commercial transactions”.
Previously, I argued that corruption is not related to a specific culture. That said, I want to expand on the importance of integrating culture into an anti-corruption compliance program.
Thomson Reuters has undertaken its annual survey into the cost of compliance and the challenges firms expect to face in the year ahead. The report builds on annual surveys of similar respondents conducted over the last six years, and where relevant highlights year-on-year trends and developments. – Between November 2014 and January 2015 nearly 600 practitioners, including a significant number of heads of compliance, from financial services firms around the world provided their insight into the costs of compliance and the greatest compliance challenges firms expect to face during the year ahead. The report findings are intended to help regulated financial services firms with planning, resourcing and direction.
There is a sense in the United States that compliance professionals are moving into the crosshairs of government enforcement actions. For years, the government has sought to bring actions not only against those who committed the primary violations, but also against the so-called “gatekeepers;” the lawyers, the accountants, and now, the compliance professionals who the government believes facilitated the illegal misconduct. When misconduct is uncovered in a company, US enforcement officials will always ask, “Was the compliance system adequate?” Senior enforcement officials will ask their investigators whether the company took appropriate steps to detect and prevent misconduct in determining whether an action against the company is appropriate.
The importance of the human factor in any anti-corruption compliance program should not be underestimated. After all, individuals pay bribes to other individuals.
Well, that’s a good question. And the answer is not simple, because the legal test can vary from country to country.
Very much so, perhaps more than many people realize.
The effective and healthy Rule of Law needs various groups of agents including a corps of Whistleblowers. The nature of corruption offenses is latent i.e. present but not visible. Therefore, Whistleblowers play an important role in fighting corruption through disclosing violations and other breaches of the law. In addition, an effective mechanism for the protection of Whistleblowers and an environment supportive of their role can play a preventative role as well. Organizations and companies will have a natural interest in maintaining legitimate and transparent operations.
An anti-corruption compliance program is important for the board in terms of business strategy and competitiveness. Obtaining business through corrupt practices results in a false sense of security vis-à-vis market expectations and, consequently, produces inappropriate - sometimes even incoherent - decisions by top management regarding business development.
The Fifth Annual High Level Conference on Anti-Corruption, jointly organised by the Turkish G20 Presidency and the OECD was held in Istanbul on 6 March 2015 with a theme of “Placing Integrity at the Heart of Business Culture”. G20 Anti-corruption working group members, invited representatives of national and international business, civil society, academics and members of the media attended the Conference. The fight against corruption is instrumental to ensure that all businesses, from SMEs to MNEs, play their part in contributing to growth and investment, and can operate with clean hands in a safe business environment. In this context, the Conference aimed at reinforcing the cooperation between governments, private sector and civil society, thereby supporting the implementation of the G20 ACWG agenda on promoting private sector transparency and integrity.
In an atmosphere of uncertainty over the issue of personal liability of management and supervisory board members in light of the myriad of compliance violations that can arise in the daily life of a globally operating company, there has been an emergence of “compliance certificates” that come in various shapes and forms. The following article assesses the liability exposure that such certificates may address under German law and discusses the limits of these new products.
Journalist, Gaynor Pengelly asks a panel of Aerospace & Defense experts what is being done to tackle the rising tide of bribery and corruption. ONE of the biggest headaches for companies conducting business overseas is bribery and corruption. The grey area of what is deemed a fair gift, meal or payment against what might be constituted a bribe is a challenge keeping senior executives up at night. And with the screws being tightened on enforcement of anti-bribery laws, such as the UK Bribery Act and US Foreign Corrupt Practices Act, this problem looks set to bedevil the industry for years to come.
Many compliance officers have voiced frustration that their boards don’t take the anti-corruption compliance issue seriously; that is, that they treat it as a purely legal issue and not as a strategic concern that could significantly impact business development.