Anti-Bribery Compliance Programs
The most effective way for companies to manage corruption risk and eliminate or reduce liability under anti-bribery laws is to implement a corporate anti-bribery compliance program. It should be tailored to a company’s business and to the risks associated with that business, in particular the foreign bribery risks facing the company (such as its geographical and industrial sector of operation). A good compliance program should contain the following elements:
- Senior management that provides strong, explicit, and visible support and commitment to the company’s internal controls and compliance program.
- A clearly articulated written policy prohibiting bribery and corruption that is available to all levels of the company.
- A compliance program that applies to and is the duty of individuals at all levels of the company, including directors, officers and employees, and to all entities over which a company has effective control, including subsidiaries.
- One or more senior corporate officers with the appropriate autonomy and resources to oversee the compliance program and who have the authority to report matters directly to an independent monitoring body, such as the internal audit committee of the board of directors.
- Policies to prevent and detect bribery and corruption in the following areas:
- Hospitality, entertainment and expenses
- Customer travel
- Political contributions
- Charitable donations and sponsorships
- Facilitation payments
- Solicitation and extortion
- Policies to deal with the bribery risk of third parties such as intermediaries, agents, consultants, representatives, distributors and business partners, such as contractors and suppliers, consortia, and joint venture partners. The compliance program should provide for the:
- Properly documented risk-based due diligence for the hiring and overseeing of business partners;
- Informing of business partners of the company’s compliance program and its commitment to conduct its business in accordance with anti-bribery laws;
- A reciprocal commitment from business partners.
- A system of financial and accounting procedures, including a system of internal controls, designed to ensure the maintenance of fair and accurate books, records and accounts.
- Regular communication and training on the compliance program to all levels of the company and to subsidiaries, agents and business partners, where appropriate.
- Appropriate disciplinary procedures applicable to all levels of the company to address violations of anti-bribery laws and the compliance program.
- Guidance and advice to directors, officers, employees, and, where appropriate, agents and business partners, on complying with the compliance program.
- Internal and, where possible, confidential reporting by, and protection of, directors, officers, employees, and, where appropriate, agents and business partners, not willing to violate professional standards or ethics under instructions or pressure from hierarchical superiors, or willing to report breaches of the law or professional standards or ethics occurring within the company, in good faith and on reasonable grounds.
- Appropriate action in response to such reports.
- Standard provisions in agreements, contracts and renewals with all agents and business partners that are reasonably calculated to prevent violations of anti-bribery laws.
- Policies and procedures for mergers and acquisitions requiring that the company conduct appropriate risk-based due diligence on potential new business entities. The compliance program will apply as quickly as is practicable to newly acquired businesses or entities merged with the company. The company will train directors, officers, employees, agents, consultants, representatives, distributors, joint venture partners and relevant employees who present a corruption risk to the company on the compliance program.
- Periodic reviews of the compliance program, designed to evaluate and improve its effectiveness in preventing and detecting bribery and corruption, taking into account relevant developments in the field, and evolving international and industry standards.
Templates for Compliance Programs
There are a number of templates that companies can refer to in building their compliance program. Companies should consider the guidelines or recommendations issued by regulatory authorities and multilateral organizations involved in anti-bribery laws. The U.S. perspective is found in “A Resource Guide to the U.S. Foreign Corrupt Practices Act” (November 2012). The U.K. point of view is articulated in “The Serious Fraud Office’s Approach to Dealing With Overseas Corruption” and “The UK Bribery Act 2010 – Guidance” (Ministry of Justice, 2011). A multilateral approach is used in “Good Practice Guidance on Internal Controls, Ethics, and Compliance” issued by the OECD Council in February 2010. Finally, a good sampling of corporate compliance programs can be found in “Anti-Corruption Policies and Measures of the Fortune Global 500,” published by UNODC. All of these templates and guidance notes are available on the Internet for free.
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