In a recent article entitled, "Bribery
and Corruption Compliance: the Playing Field Levels", Timothy Coleman and
attorneys from the law firm of Freshfields
Bruckhaus Deringer discuss what they term the "tectonic shift" in
anti-bribery and anti-corruption compliance internationally. The authors posit
that increased enforcement of the US Foreign Corrupt Practices Act (FCPA); the
release of the Organization of Economic Cooperation and Development (OECD) Good
Practice Guidance on Internal Controls, Ethics and Compliance (OECD Good
Practices); and the impending July 1 implementation date of the UK Bribery Act,
have all acted to place "new burdens" on companies to have the highest standard
of anti-bribery corruption programs in place.
The requirements of the FCPA are interpreted through the
US Sentencing Guidelines, various Deferred Prosecution Agreements and
Department of Justice Opinion Releases. The Bribery Act is interpreted through
Guidance released by the UK Ministry of Justice. The OECD Good Practices
contain its own commentary on interpretation. Using these documents,
collectively called "the Sources" we will discuss the authors' ten essential
elements an anti-bribery and anti-corruption compliance program. The ten
elements formulation is as follows:
The authors then advocate a three step implementation
plan for an anti-bribery and anti-corruption program. This three step approach
being with (1) Strategic Planning-where risks are assessed and then
resources are dedicated to ameliorating or managing the risks; (2) Written
Compliance Policy-every company should commit its entire anti-bribery and
anti-corruption program to writing and distributed company-wide and to
appropriate third parties; and (3) Implementation Plan-after risks are
assessed a company-wide implantation plan should be created to begin to
implement the policy beginning with the highest risks first and moving
step-by-step throughout the company.
We congratulate the authors for a thoughtful paper which
is great use to the compliance practitioner. If your company is implementing a
compliance program, this article lays out a clear road map that you can follow.
However the paper is equally of value to the company which needs to assess or
review its overall anti-bribery and anti-corruption program. The authors use of
the FCPA interpretations, the Bribery Act Guidance and OECD Good Practices are
references point throughout the piece which provide an excellent resource for
the compliance practitioner to gauge an ongoing compliance program. We welcome
the authors' contribution.
Visit the FCPA Compliance and Ethics Blog,
hosted by Thomas Fox, for more commentary on FCPA compliance, indemnities and
other forms of risk management for a worldwide energy practice, tax issues
faced by multi-national US companies, insurance coverage issues and protection
of trade secrets.
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only and is based on the experiences and research of the author. The author is
not, by means of this publication, rendering business, legal advice, or other
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© Thomas R. Fox, 2011
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