International Coordination and Cooperation in Corruption Cases
Global anti-corruption enforcement is fast becoming a complicated affair. No longer can companies just focus on the FCPA, with momentary blips of concern for the UK Bribery Act.
The OECD and other international organizations want to see aggressive enforcement around the globe, and they are doing a great job of pushing countries on this issue. Of course, the more cynical view is that more countries are joining the anti-corruption fight for another important reason – money. Companies are paying hefty fines, and other countries want to get into the action.
The US Justice Department is also expanding its cooperation network to include other countries. This is not a new phenomenon. The Antitrust Division has been a pacesetter in this area, working to break up international cartels with the assistance of foreign law enforcement agencies.
With the ever-expanding network of law enforcement agencies and anti-corruption laws, we are fast approaching the nightmare scenario – a single act of bribery, depending on the specific statutes, could result in multiple enforcement actions divided up a number of foreign law enforcement agencies. Talk about a headache.
Law enforcement agencies are improving their coordination in collecting evidence and investigating global companies. The barriers among foreign law enforcement agencies are being lowered as the global economy demands seamless information sharing.
There are still challenges for the Justice Department, especially in China where there continue to be significant challenges in collecting evidence and coordinating investigations and prosecutions.
As evidence of the increased operation around the globe, all you have to do is look closely in recent FCPA settlements.
For example, in the Alcoa settlement earlier this year, the Justice Department worked closely with the Swiss Attorney General’s Office, the Bailiwick of Guernsey’s Financial Intelligence Services, the UK’s Serious Fraud Office, and the Australian Federal Police.
In the Hewlett-Packard matter, the Justice Department coordinated with the German Public Prosecutor’s Office, the Polish Anti-Corruption Bureau, the Mexican law enforcement authorities, the UK and Lithuania.
Similarly, in the Marubeni case, the Swiss Attorney General’s Office, the UK’s Serious Fraud Office and the Indonesian anti-corruption authorities assisted the US Justice Department.
The Justice Department is also taking into account settlements reached by companies with foreign law enforcement agencies involving the same bribery scheme. The Justice Department has cited such settlements as a reason for agreeing to a lower penalty in the US enforcement action.
With the increase in global coordination, companies face ever increasing risks. It is yet another reason to argue for increased focus on effective anti-corruption compliance programs and resources. All too often, senior management ignores such requests and compliance officers are required to do more with less. However, just like many other enforcement risks, many companies will wait until they are under investigation to ask the important question – “Why didn’t we focus on this risk before?”