Compliance practitioners often hear that bribes must be paid in emerging markets to get anything done. Indeed a recent survey by CEB (formerly Corporate Executive Board) of more than 700,000 employees of multinationals around the world, discussed in a Harvard Business Review article, entitled "Greased Palms, Giant Headaches", by Dan Currell and Tracy Davis Bradley reported that there was a large jump in the payments of bribes, providing or receiving improper gifts and failures to report conflicts of interest in the BRIC (Brazil, Russia, India and China) countries over developed countries. Is bribery really pervasive in those countries or is it simply the perception? On the other hand, as Andre Agassi was found to say "Perception is reality." Certainly the story by the New York Times (NYT) about Wal-Mart in Mexico paying over $24 million to be the first big box retailer into the Mexican market may lead some credence to that perception. While the authors did not specifically address the Foreign Corrupt Practices Act (FCPA) or UK Bribery Act, they did report that "bribery and corruption is the second leading category of unlawful activity by Western companies in emerging markets".
However, Currell and Bradley focus their collective attention on the US corporate headquarters in their article. They note that "Our research suggests that one driver originates at headquarters-multinationals' increasing growth imperative in emerging markets." While it certainly is a recognized and valid long-term growth strategy to identify and develop new markets, the authors believe that companies are now thinking that they can "meet our targets by increasing revenues quickly in markets" like the BRIC countries. In other words, long-term strategic plans suddenly become "short-term necessities" and this change can increase "the pressure on local employees to make their numbers, tempting some to break the law."
What is a company to do when short term goals cause pressure, pressure and more pressure for increased revenues? The authors acknowledge that a robust compliance program is a key component for protection against bribery and corruption by employees, but they believe that more is needed. They identify "Integrity Capital" as a key component to "lower levels of misconduct along with higher levels of reporting when employees do witness wrongdoing. Integrity capital is embedded in the culture, not instituted through controls, and it helps shape employee behavior, which could include offering a bribe or defrauding the company." The authors identify the following as five factors of Integrity Capital:
The authors conclude their article with three different concepts which they believe will minimize the occurrences of bribery and corruption within an organization. First, a company should use commonsense observation. If an emerging market shows success in "speeding things along", such as regulatory approvals for the construction of bricks-and-mortar facilities, this made need to be looked at closer. Since regulatory approvals do not happen quickly in BRIC countries, it may be that the skids were greased with cash to pay bribes. The second is that a company must be proactive in seeking out and obtaining information from employees about allegations of bribery and corruption. The authors "advise companies to also proactively solicit information from frontline employees and to use surveys or online tools to guarantee anonymity" in reporting allegations of bribery and corruption. Lastly, the authors insist that companies have organization justice so that if there are credible reports of misconduct they are not swept under the rug.
Currell and Bradley provide interesting observations which can be used by a compliance professional to evaluate the sufficiency of their compliance program. Their thoughts on things to look for from an emerging market provide solid guidance on searching for potential red flags which might warrant further investigation from internal audit or a FCPA based compliance audit team. There are a number of practitioners and ethicists who talk about the need for ethics in any company culture to compliment a compliance program. The article by Currell and Bradley provides some of their guidance on what that may look like.
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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© Thomas R. Fox, 2012
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