FCPAméricas Blog
Cultural Considerations and the FCPA: Part 1 (Enforcement)
12.20.2011
Do considerations of culture have a place in the FCPA? Yes and no – it depends on the context. Part 1 (below) of this blog post discusses culture’s role in enforcement. Part 2 discusses its role in compliance.
Part I. Enforcement. In FCPA enforcement, cultural norms are irrelevant. It does not matter to law enforcement whether corrupt acts – like paying “commissions” to sales agents in Brazil (see, e.g., Universal Corp.) or making small payments to regulatory officials in Turkey (see, e.g. Delta & Pine Land) – are standard practice in a certain country.
It is true that the FCPA provides an affirmative defense for activity that is lawful under written local laws or regulations. But we have yet to see a written local law that legalizes bribery, even petty corruption.
In... Read more
More Wisdom from The Bribery Act Guys
12.15.2011
In FCPAméricas’s last post, we gave highlights from Tom Fox at the World Compliance FCPA Summit 2011 in Houston, TX. At the same seminar, the Bribery Act Guys (UK attorneys Barry Vitou and Richard Kovalevsky QC) offered their own wisdom.
Transitioning Away from Facilitating Payments
While it is commonly known that, unlike the FCPA, the UK Bribery Act prohibits facilitating payments, the Bribery Act Guys offered insight into how the Serious Fraud Office (SFO) will give companies time to bring their practices into compliance. The SFO has offered a 6-step guidance. The Bribery Act Guys explain that, “If the answers to these questions are satisfactory then the corporate should be shielded from prosecution”:
1. Whether the company has a clear issued policy regarding such payments;
2. Whether written guidance is available to relevant employees as to the procedure they should follow when asked to make such payments;
3. Whether such procedures are being followed by employees;
4. If there is evidence that all such payments... Read more
More Wisdom from Tom Fox
12.13.2011
At last week’s World Compliance FCPA Summit 2011 in Houston, TX, U.S. FCPA compliance attorney Tom Fox offered important points of wisdom.
“Document, Document, Document.”
The bedrock components of an adequate FCPA compliance program are well known. Every deferred prosecution agreement since Panalpina has included an Attachment C outlining basic requirements (see, e.g., Attachment C of Panalpina DPA). Tom Fox instructs how, in addition, it is equally important for a company to record its steps of compliance. His three most important words for FCPA compliance are “Document,” “Document,” and “Document.” While some attorneys are inclined to retain as little documentation on file as possible believing that it will reduce potential liabilities, Mr. Fox stresses that the opposite is true under the FCPA. If an issue happens to arise, the company will want to show regulators each step of the compliance process. “If the evidence does not appear before enforcement officials’ eyes, then, to them, it does not exist,” Mr. Fox says. So, for example, when retaining third parties, the compan... Read more
