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.
Frances McLeod and the Forensic Risk Alliance team Win Consulting Team of the Year at ‘Women in Compliance Awards 2014’* Frances McLeod, one of the three founding partners of Forensic Risk Alliance (FRA), and her team have won Consulting Team of the Year at the 2014 ‘Women in Compliance awards‘. The award was open to all providers of COMPLIANCE consulting services, where the team is led by a woman or can demonstrate that the women on the team contribute significantly to the team’s overall success. Some questions for Frances:
The OECD Anti-Bribery Convention (the unwieldy official name of which is the “OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions”) has proven to be a surprisingly successful international agreement—far more effective than the various regional anticorruption instruments or the U.N. Convention Against Corruption (UNCAC), and indeed far more effective than even the OECD Convention’s proponents had predicted. Of course, it’s hard to know how much one can credit the OECD Convention for changes in anticorruption laws and enforcement patterns, but lots of well-informed people believe it has had a big effect, primarily because of its rigorous peer review system.
We, at Sofrecom, are conscious of our exposure to corruption risks in the areas where we work and dedicated to respecting international legislations. Therefore, we have made our commitment to anti-corruption compliance a priority since 2008. Sofrecom has implemented enhanced anti-corruption compliance procedures in order to guide our managers and partners and to supply them with the tools necessary to make the right choices and to ensure that business practices are carried out with integrity.
On 31 January 2014, following a consultation process which started on 27 June 2013 and closed on 6 October, the UK’s Sentencing Council (the “Council”) published the final version of the sentencing guideline for corporate offenders convicted of fraud, bribery and money laundering (the “Guideline”), the UK’s first ever sentencing guideline for such offences aimed specifically at corporate offenders. The Guideline will apply to all corporate offenders sentenced from 1 October 2014, regardless of when the offences were committed or the date of the conviction.
Brazil’s new Anti-Corruption Law (Law nº 12,846 of August 1st, 2013) entered into force on January 29th, 2014 and it is expected to change the landscape of enforcement against corrupt practices in the country. In August 2000 Brazil became a party to the Organisation for Economic Co-operation and Development (OECD) Convention on Bribery of Foreign Public Officials, under which it committed to introducing a comprehensive statute and to stepping up the prosecution and sanctioning of corruption. Congressional review of the anti-corruption bill was initiated in 2010, and after a little more than two years, it became law in the midst of a wave of protests against corruption all around Brazil.
The authorities may discuss these issues between them but there is no obligation on them to reach agreement. They may each decide to prosecute and seek asset forfeiture. Whether they can do this will depend on their domestic law and the extent to which their courts take account of convictions or acquittals in other states.
Most business managers disapprove of corrupt practices. But at the same time, the perception often prevails that acting against corruption will either result in a short-term loss of opportunity or that corruption is seen as a necessity of doing business. So how can companies and their managements be persuaded to act against corruption by committing to a zero-tolerance of corruption and establishing an anti-corruption ethics & compliance program? The typical first reaction is to call for more punishments (sanctions) for companies and their representatives when violating anti-corruption standards, such as a national anti-corruption law or a company’s Code of Conduct for its suppliers.
Anti-bribery and corruption (ABC) legislation is similar across many jurisdictions. The prohibitions are deliberately broad and typically follow standards set forth in the OECD Anti-Bribery Convention, which in turn was largely modelled on the U.S. Foreign Corrupt Practices Act (FCPA). The US FCPA allows for facilitation or ‘grease’ payments, however most other ABC laws do not. Indeed we are not aware of any jurisdiction which allows for bribery of its own government employees, even if they might constitute “facilitation payments” under the FCPA. What does change dramatically from jurisdiction to jurisdiction is the level of Government enforcement. This can be summarised as:
It is a commonly known fact that corruption has its roots stretching back into antiquity. Over the years, American and European companies have built their businesses based on principles of compliance and integrity, whereas in the CIS such practices were known only in the CIS subsidiaries of international companies.
The concept of functional equivalence is a derivative of a theory of comparison of law: Comparatists have over time moved away from mere comparison of institutions, they have developed an idea what institutions mean in their specific context. Seen from there the emphasis lies on how the different parts of a legal system interact. This concept has been used in the context of the OECD for a normative purpose: to establish whether a standard has been achieved.
C5 has been organising anti-corruption conferences for over 20 years, and although every conference is different, our approach of working closely with business leaders to determine the content most relevant and useful to potential participants at any given time, remains unchanged. All of our anti-corruption conferences start with approximately 100 hours of interviews with Chief Compliance Officers, General Counsel and their advisors (including companies currently under investigation).
Western businesses are expanding their presence in the growing markets of the New Independent States (NIS). Natural resources, a vast population and low labor costs are attracting major players who form ventures or sell their products to almost 280 million people. At the same time these emerging economies are being eroded by corruption (one just needs to look at the Transparency International Corruption Perception Index), suffer from underdeveloped business legislation (which, in any event, is often not respected) and selective justice. When cultural differences and the heritage of a 70 year Soviet regime are added it is possible to fully appreciate the challenges that the US or European investor faces in the new markets. Constant regulatory threats for breach of anti-corruption laws from Western enforcement agencies complement this picture.
Australia has had a Compliance standard since 1996 (AS/NZS2806). The standard was then updated in 2006 and forms the basis of ISO 19600. As more and more countries implemented more complex regulations some with extraterritorial reach the potential benefits of a uniform standard became evident. In 2001 the British Standards Institute published its own anti-bribery standard.
As research demonstrates industry reaps the benefits of a high representation of women in the compliance function; companies with the most female leaders, on average, generate a 35% higher return on equity and 34% higher return for shareholders than those with the fewest, according to an article published by the Healthcare Businesswomen’s Association referencing a recent Catalyst study. C5, as an integral part of the compliance community, is responding to and reflecting the dynamic growth and development of the indsutry and the key role that women play in it.
Public pressure and international anti-corruption laws and, in particular, their element of extraterritoriality, have forced companies to become more stringent in their anti-corruption compliance programs. The US Foreign Corrupt Practices Act and UK Bribery Act are examples of national laws which can have significant impact on any company with even the most tenuous link to doing business in either one of those countries.