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Using Business Tools to Fight Bribery and Leverage FCPA Programs: ISO 37001
- Companies operating and expanding internationally are not aware of bribery risks and consequences.
Many U.S.-based small and medium-size businesses now market, sell and operate overseas. But are they aware of their anti-bribery obligations, the particular bribery risks that apply to their industry and the countries where they operate, and the consequences of non-compliance? Probably not.Various U.S. and country-specific anti-bribery requirements apply to U.S. companies doing business overseas. The financial and personal consequences of non-compliance are high. In addition to possible fines and penalties for companies and persons, there is the specter of prison time for convicted persons. Even a bribery allegation (and certainly a settlement or conviction) can do significant damage to a company’s reputation and market standing.
- Overseas agents are a good way to learn about and enter new markets – and a primary corruption risk.
Local agents help companies assess and prioritize business opportunities. They provide background and context, make introductions to local business and governmental officials, and generate information and contacts that are invaluable to a U.S. company establishing a business presence in an unfamiliar geography.Agents are also the single greatest bribery risk for companies. Agents that directly or indirectly bribe a governmental official to obtain or retain business for a company incur liability for that company. Historically, the vast majority of reported U.S. cases of bribery involve agents bribing governmental officials. Other countries’ laws, such as the U.K.’s, also prohibit commercial bribery – either directly by the company or through agents.
- Supply chain participants, to minimize their own bribery risk, are increasingly requiring that other supply chain members have anti-corruption compliance programs.
Business and society at large are more aware of the true costs of corruption: market distortion, lack of respect for the rule of law, and lack of social mobility - prime conditions for societies that breed and foster terrorism.Market forces, as well as legal liability considerations, are therefore driving companies to require that their supply chain participants take proactive anti-corruption measures. Companies that seek to participate in the global supply chain that do not have reasonable and proportionate anti-corruption compliance programs in place run the risk of losing or being excluded from business opportunities.
- Personal liability for overseas bribery is a real and growing emphasis of U.S. and U.K. law enforcement.
Law enforcement in the U.S. and U.K. have increasingly been focusing on a simple truth: Companies are far more likely to take bribery seriously if a company executive faces serious personal consequences for his/her actions (or inactions, as the case may be).
The U.S. DOJ – perhaps responding to certain critical press coverage of companies seemingly treating bribery penalty payments as “a cost of doing business” and executives involved rarely being sent to prison – has revised the process followed by prosecutors bringing cases under the overseas bribery statute. Prosecutors must now identify potentially responsible persons at case outset. Periodic case management reports to supervisors must include investigative findings concerning those individuals. A target’s ability to pay is excluded from the analysis.Two additional factors provide strong incentives for prosecutors to bring cases against individuals in bribery cases:
- Society’s view – There is growing awareness of the widespread harm caused by bribery and the hard data showing that is not a “victimless crime.”
- Career advancement – One of the primary measures of prosecutorial success is the number of criminals put behind bars.
- Allegations of bribery damage the business: Customers, investors and others want to do business with (or invest in) companies that are “good corporate citizens.”
Today’s 24/7 hyper-connected age offers both opportunities and challenges.
Imagine: A fellow company executive calls you at 2 a.m. on a Monday morning with news about a very negative tweet that has gone viral. It contains a report that a company agent was arrested by the FBI on bribery charges as he landed in New York around midnight - and your colleague has verified the fact of the arrest. You’re scheduled to present to the company’s customer council in 8 hours - with the company agent now under federal arrest as a co-presenter.
Companies experience situations like this, and it only gets worse as investigations drag out over time. If the allegations result in charges, the volume of bad press, social media speculation and other negative fallout continues. Competitors typically take full advantage of the situation – it is often enough just to mention the name of the very-much-in-the-news company and raise an eyebrow to effectively send the message: you do not want to do business with that company.