A Practical Look at the Compliance Defense Proposals

You may also like...

7 Responses

  1. Gregor Allan says:

    What is so unusual about proving a deficiency? The law in my country and doubtless yours is replete with examples – usually in the regulatory setting, where criminalising deficiency is the name of the game. Occupational Health and Safety regulation (failure to take sufficient precautionary safety measures), for example.
    Is the issue less the nature of the proposed offence and more the uncertainty of what will be considered deficient? That, surely, is simply a matter of establishing precedent… so maybe the NPA/DPA issue is NOT one that should be left for another day?

  2. Jon May says:


    While it may be that companies cannot afford to challenge the government at trial, as more individuals are prosecuted and more executives targeted these defenses become relevant to counter government claims of conscious avoidance. Your blog the other day on the advice of counsel defense comes into play here as well. I agree that these are probably going to have to be affirmative defenses that the defense will have to prove, but there is a substantial argument that the facilitation exception is actually an element of the offense which the government is required to disprove based upon how the FCPA is drafted.


  3. Eva Galfi says:

    Michael, it’s always great to read the posts you write. Here in Australia there is not much activity in terms of anti-bribery prosecutions. In fact, we’ve only had one… ever. It’s all about to change as the OECD Working Group will be making a trip down under later this month to evaluate Australia’s progress when it comes to enforcement of our existing laws. I anticipate that the coming years will see an increase in investigations and prosecutions and that companies will pay more attention to their policies and employee training. I don’t think there haven’t been a lack of prosecutions because all of our business dealings in the southern hemisphere have been on the straight and narrow… there’s just not enough resources dedicated to making sure companies are doing the right thing. Anyway, I enjoy your posts on how FCPA reform efforts are playing out in the states, as I’m sure the discussion on anti-bribery legislation will get bigger down under in the short term.

  1. May 16, 2012

    […] Volkov slammed the compliance defense proposals tied to overall FCPA reform sought by the U.S. Chamber of Commerce […]

  2. May 16, 2012

    […] Volkov slammed the compliance defense proposals tied to overall FCPA reform sought by the U.S. Chamber of Commerce […]

  3. September 4, 2012

    […] this post concerning a compliance defense, Michael Volkov states that my proposal to have […]

  4. December 5, 2012

    […] Those who argue for a compliance defense have never explained in practical terms how such a defense would work.  Until they address the issues and fix the obvious problems with the defense, the prpoposal will never gain any ground.  See my post here.  […]