Everyone in the FCPA field knows how to mouth the key words. Practitioners always identify “ongoing assessment” as an essential part of any anti-corruption compliance program. What exactly does that mean? You can define the responsibility for ongoing assessment narrowly or broadly, depending on how much of a commitment you want to make. It is easy to define an ongoing assessment requirement to just an...
As promised, I wanted to address some of the nuts and bolts of a due diligence review of a third party agent. The focus of a due diligence inquiry is “reasonable inquiries” to identify and assess the risks that a third party will engage in bribery. Of course, the specific aspects of the inquiry will change depending on the particular facts surrounding the third party,...
The kind of man who wants government to adopt and enforce his ideas is always the kind of man whose ideas are idiotic – H. L. Mencken As the calls for FCPA reform grow louder, I thought it would be timely to examine one of the more significant FCPA reform proposals: Robert W. Tarun and Peter P. Tomczak, Baker & Mckenzie partners authored “A Proposal for...
Companies need to conduct a reality check of their internal controls. Of course, Sarbanes-Oxley imposed new and significant requirements on companies to implement adequate internal controls. Companies responded quickly to the SOX requirements. There are certain basic requirements which need to be implemented. Assuming that a company is interested in preserving documents and has that capability, there are a number of steps a company can take...
The importance of anti-corruption training is often understated in comparison to other elements of a an anti-corruption compliance program. Perhaps we should start with the term “training” and broaden the concept to what it really is — “communicating, listening and responding.” For compliance officers and staff, training programs is the one critical opportunity to educate, listen and learn from the audience. It is a two-way communication process,...
In-House counsel and corporate compliance officers dodge bullets everyday as they stare down the barrels of aggressive prosecutors, regulators, civil litigants, whistleblowers, disgruntled employees and shareholders prodded by trial attorneys to file derivative suits at the drop of a hat. In the face of all of these risks, internal investigations have become commonplace and a standard defensive tactic for a company to regain some leverage,...
As part of my continuing series on building an anti-corruption compliance program from scratch, we need to work on the next step in our continuing series. In yesterday’s post I described the risk assessment process. So, your Bible is now complete. Your risk assessment outlines potential risks and covers the following: geographic areas of operation and levels of corruption in these countries; industry corruption levels and enforcement...
FCPA websites and blogs are filled with company advertisements offering due diligence services, guaranteeing facts and results. But this is only one piece in the due diligence puzzle and process. Designing a review protocol, ensuring that information is gathered and reviewed, and most importantly, requiring a brief memo reflecting the review and decision-making process, along with a statement of reasons for approving a third party,...
What if – and this is a big what if – your company is starting from scratch on its anti-corruption compliance program? Your company’s Code of Conduct includes a paragraph prohibiting foreign bribery and mandating accurate books and records, and says little more. Some companies are able to relate to these questions. At the outset, your company has to recognize a couple of reality checks...
Global companies face increasing corruption risks — more countries are passing anti-corruption laws and enforcement is on the rise. With the need for more sophisticated and rigorous anti-corruption compliance programs, corporate leaders face a very difficult question — how much will it cost to comply and how much will it cost if we do not comply? Well, of course, one significant and unknown variable in this calculus is...
