There is, as yet, no local Bermuda statute that specifically relates to bribery of a foreign public official, and in the absence of express legislative provision, it is unlikely that a court would conclude that there is such an offence under Bermuda’s common law. It is, however, potentially arguable that the bribery and corruption provisions of the Criminal Code Act 1907, and the other pieces of Bermuda legislation referred to above, might be broad enough to encompass bribery of foreign public officials…
During monitored and recorded telephone calls, and in meetings, Mr. Cilins agreed to pay substantial sums of money to a witness to the bribery scheme in return for original documents which had been requested by the FBI and that were to be produced for the grand jury. Mr. Cilins planned to destroy the records.
— Attorney Thomas Gorman of Dorsey & Whitney on a recent guilty plea the DOJ obtained from an individual as part of an FCPA and money laundering investigation.
Given heightened enforcement of the U.S. Foreign Corrupt Practices Act, particularly in the energy industry, international energy firms need to pay particular attention to their anti-bribery risks when contemplating potential transactions in Mexico’s newly privatized energy markets.
— Attorneys Obiamaka Madubuko and Michael Stanek of McDermott Will & Emery in New Energy Opportunities in Mexico Raise FCPA, Anti-Bribery Risks
Generally, examples of offers made with “corrupt intent” involve influencing the procurement process, side-stepping or granting exceptions to regulations (including tax treatment), giving someone access to nonpublic bid information or influencing the outcome of a lawsuit or enforcement action.
— Keshav Nair of The Network on how to recognize the “corrupt intent” behind bribery.
"It has been several months since publicity began about aggressive investigations of potential bribery in the pharmaceutical industry in China. Despite the passage of time and dwindling international media attention, Chinese regulators have not slowed down their efforts to ferret out corruption in the pharmaceutical sector and related industries. Chinese authorities’ determination is reflected not only in new and continuing investigations, but also in the enactment of new legislation."
We must clearly define acceptable limits of both giving and receiving. Many organizations want to put specific and low limits on what employees can receive, but insist on keeping “squishy” language on what marketing and sales (and executives) can give.
— Executives: The Organization’s Gifts Policy Also Applies to You (Carrie Penman of NAVEX Global)
What is clear is that the SFO will not shy away from commencing complex international corruption investigations into large corporations such as Rolls-Royce. The SFO is keen to show that it will investigate and, in the “right case”, prosecute organisations and individuals that have breached the Bribery Act or the law predating the act.
— Attorneys Audrey Dwyer, Nicholas Greenwood, and David Waldron of Morgan Lewis on the UK Serious Fraud Office’s criminal investigation into allegations of bribery and corruption at Rolls-Royce.
From attorneys at Shearman & Sterling, an impressive 744-page digest of 2013 Foreign Corrupt Practices Act cases, official communications, and trends:
“Last year, we noted that 2012 had been ‘a fairly slow time’ in terms of corporate enforcement actions, with twelve enforcement actions against corporations. 2013 was slower still, with only nine corporate enforcement actions. There was a steep increase in corporate fines, however, and enforcement against individuals saw a marked increase, from five in 2012 to sixteen in 2013—eight of whom pleaded guilty…”
- "Have been convicted of bribery as a criminal offence;
- Have been issued a non-prosecution decision by the People’s Procuratorate when the bribery offenses are deemed minor;
- Have been investigated and punished for bribery by the discipline supervision authorities of the China Communist Party; or
- Have received administrative penalties for bribery from relevant administrative authorities.”
Read: China Tightens Controls over Commercial Bribery in the Health Care Industry - Katherine Wang of Ropes & Gray»
1. Executive Order 13627 on Trafficking in Government Contracts — Enforcement Begins
2. Compliance with California’s Transparency in Supply Chains Act of 2010 Finally Required
3. OFAC Civil Enforcement Continues to Shift Away from Individuals and Nonfinancial Companies.
4. Foreign Corrupt Practices Act and Related Enforcement Regains Momentum
5. Non-U.S. Anti-Corruption Enforcement (and, in Particular, German Enforcement) On the Rise
6. “Carbon Copy” Prosecutions the “New Normal”
7. Conflict Minerals Rules Enforcement in Full Force
8. “Anticipatory Obstruction of Justice” Charges Gain Traction
9. Increased SEC Action on Whistleblower Complaints
10. Compliance Professionals Will Expand their Subject-Matter Expertise
2014 is set to be Brazil’s year. The FIFA World Cup is expected to bring 600,000 international visitors to 12 host cities, inject R$25 billion (£6.6 billion) into the economy and present Brazil’s vibrant culture to more than 700 million viewers worldwide. With the eyes of the world on Brazil, 2014 will also be the year that the country signals its intention to get tough on corruption; a problem which is perceived to have historically restricted economic growth and inhibited foreign investment.
On discovering corruption in a target’s business, a potential buyer may choose, or even be obliged under whistleblower rules to disclose a compliance issue to a regulator. If the regulator uncovers widespread corrupt conduct in the target, this may not only result in the collapse of the sale, but also significant fines, penalties and remediation costs for the target.
So what is the prospect for the UK construction industry? Here is a prediction: in the next two years, at least two large international firms will be forced to announce [Serious Fraud Office] investigations in connection with infrastructure projects.
The FCPA may have its flaws, but it is not anti-business.
At a Chinese subsidiary of a publicly-traded multinational that has implemented this sort of values-based approach, a local employee once told me, ‘We have a stronger compliance culture than our competitors, and we regularly lose business to them. But I wouldn’t trade jobs; I’m glad I work here.’ Talking about values is a first step; demonstrating that they are truly ‘valued’ must come next…
What’s missing from your corporate compliance program? It could be any of a number of items, according to our latest JD Supra Legal Perspective, including:
- A value-based approach
- Periodic testing and review
- Crisis management plans
- Commitment built into the corporate culture
- Unshakable commitment to integrity and ethics
- Integration with the daily flow of business
For the full perspective, read: What’s the One Thing Missing From Your Corporate Compliance Program?