Corruption, including corruption of public officials, dates from early in human history and countries have long had laws to punish their corrupt officials and those who pay them bribes. But national laws prohibiting a country’s own citizens and corporations from bribing public officials of other nations are a new phenomenon, less than a generation old. Over the course of the past 20 years, anti-corruption law has established itself as an important, transnational legal speciality, one that has produced multiple international conventions and scores of national laws, as well as an emerging jurisprudence that has become a prominent reality in international business and a well-publicised theme in the media.
This edition undertakes to capture the growing anti-corruption jurisprudence that is developing around the globe. It does so first by summarising national anti-corruption laws that have implemented and expanded the treaty obligations that more than 150 countries have assumed. These conventions oblige their signatories to enact laws that prohibit paying bribes to foreign officials. Dozens of countries have already done so, as this edition confirms. These laws address both the paying and receiving of illicit payments – the supply and demand sides of the official corruption equation – as well as mechanisms of international cooperation that have never before existed.
Second, this edition addresses national financial record-keeping requirements that are increasingly an aspect of foreign bribery laws because of their inclusion in anti-corruption conventions and treaties. These requirements are intended to prevent the use of accounting practices to generate funds for bribery or to disguise bribery on a company’s books and records. Violations of record-keeping requirements can provide separate bases of liability for companies involved in foreign and domestic bribery.
Finally, because the bribery of a foreign government official also implicates the domestic laws of the corrupt official’s country, this edition summarises the better-established national laws that prohibit domestic bribery of public officials. Generally not a creation of international obligations, these are the laws that apply to the demand side of the equation and may be brought to bear on payers of bribes who, although foreign nationals, may be subject to personal jurisdiction, apprehension and prosecution under domestic bribery statutes.
The growth of anti-corruption law can be traced through a number of milestone events that have led to the current state of the law, which has most recently been expanded by the entry into force in December 2005 of the sweeping United Nations Convention against Corruption (UNCAC). Spurred on by a growing number of high-profile enforcement actions, investigative reporting and broad media coverage, ongoing scrutiny by non-governmental organisations (NGOs) and the appearance of an expanding cottage industry of anti-corruption compliance programmes in multinational corporations, anti-corruption law and practice is rapidly coming of age.
The US ‘questionable payments’ disclosures and the FCPA
The roots of today’s legal structure prohibiting the bribery of foreign government officials can be traced to the discovery in the early 1970s of a widespread pattern of corrupt payments to foreign government officials by US companies. First dubbed merely ‘questionable’ payments by regulators and corporations alike, these practices came to light in the wake of revelations that a large number of major US corporations had used off-book accounts to make large payments to foreign officials to secure business. Investigating these disclosures, the US Securities and Exchange Commission (SEC) established a voluntary disclosure programme that allowed companies that admitted to having made illicit payments to escape prosecution, on the condition that they implement compliance programmes to prevent the payment of future bribes. Ultimately, more than 400 companies, many among the largest in the United States, admitted to having made a total of more than US$300 million in illicit payments to foreign government officials and political parties. Citing the destabilising repercussions in foreign governments whose officials were implicated in bribery schemes – including Japan, Italy and the Netherlands – the US Congress, in 1977, enacted the Foreign Corrupt Practices Act (FCPA) that prohibits US companies and individuals from bribing non-US government officials to obtain or retain business, and provided for both criminal and civil penalties.
In the first 15 years of the FCPA’s implementation, during which time the US law was unique in prohibiting bribery of foreign officials, enforcement was steady but modest, averaging one or two cases a year. Although there were recurring objections to the perceived impact that this unilateral law was having on the competitiveness of US companies, attempts to repeal or dilute the FCPA were unsuccessful. Thereafter, beginning in the early to mid-1990s, enforcement of the FCPA sharply escalated, and, at the same time, a number of international and multinational developments focused greater public attention on the subject of official corruption and generated new and significant anti-corruption initiatives.
A different type of milestone occurred in Germany in 1993 with the founding of Transparency International, an NGO created to combat global corruption. With national chapters and chapters-in-formation now in more than 100 countries, Transparency International promotes transparency in governmental activities and lobbies governments to enact anti-corruption reforms. Transparency International’s annual Corruption Perceptions Index (CPI), which it first published in 1995, has been uniquely effective in publicising and heightening public awareness of those countries in which official corruption is perceived to be most rampant. Using assessment and opinion surveys, the CPI currently ranks 180 countries and territories by their perceived levels of corruption and publishes the results annually. In 2017, Denmark, New Zealand, Finland and Norway topped the CPI as the countries perceived to be the world’s least corrupt, while Somalia, South Sudan and Syria were seen as the most corrupt.
In 1999, Transparency International also developed and published the Bribe Payers Index (BPI), which is designed to evaluate the supply side of corruption by ranking the 28 leading exporting countries according to the propensity of their companies to not bribe foreign officials. In the most recent BPI, published in 2011, Dutch and Swiss firms were seen as the least likely to bribe, while Russian, Chinese and Mexican firms were seen as the worst offenders.
Through these and other initiatives, Transparency International has become recognised as a strong and effective voice dedicated to combating corruption worldwide.
The World Bank
Three years after the formation of Transparency International, the World Bank joined the battle to stem official corruption. In 1996, James D Wolfensohn, then president of the World Bank, announced at the annual meetings of the World Bank and the International Monetary Fund that the international community had to deal with ‘the cancer of corruption’. Since then, the World Bank has launched more than 600 programmes designed to curb corruption globally and within its own projects. These programmes, which have proved controversial and have encountered opposition from various World Bank member states, include debarring consultants and contractors that engage in corruption in connection with World Bank-funded projects. Since 1999, the World Bank has debarred or otherwise sanctioned more than 900 firms and individuals for fraud and corruption, and referrals from the Integrity Vice Presidency (INT) about findings of fraud or corruption to national authorities for prosecution have resulted in more than 60 criminal convictions.
In 2018, the World Bank announced that during the fiscal year ending 30 June 2018, it debarred or otherwise sanctioned 78 firms and individuals for wrongdoing under its Voluntary Disclosure Programme (VDP), including several high-profile negotiated resolution agreements in which companies acknowledged misconduct related to a number of World Bank-financed projects and cooperated with authorities from numerous countries to quickly address corruption identified during ongoing World Bank investigations. The World Bank maintains a list of firms and individuals it has debarred for fraud and corruption on its website and, in an effort to increase the transparency and accountability of its sanctions process, it recently began publishing the full text of sanction decisions issued by its Sanctions Board. As part of the World Bank’s effort to curb corruption, the Integrity Compliance Office also works to strengthen anti-corruption initiatives in companies of all sizes, including assisting debarred companies to develop suitable compliance programmes and fulfil other conditions of their sanctions.
In July 2004 and August 2006, the World Bank instituted a series of reforms that established a two-tier administrative sanctions process that involves a first level of review by a chief suspension and debarment officer, followed by a second level review by the World Bank Group’s Sanctions Board in cases where the sanctions are contested. In August 2006, the World Bank also established the VDP that allows firms and individuals that have engaged in misconduct – such as fraud, corruption, collusion or coercion – to avoid public debarment by disclosing all past misconduct, adopting a compliance programme, retaining a compliance monitor and ceasing all corrupt practices. The World Bank’s Department of Institutional Integrity administers the VDP, which was developed in a two-year pilot programme. In late-2017, the World Bank’s Office of Suspension and Debarment (OSD) published an addendum to its landmark 2015 report on World Bank enforcement activity. The addendum contains case processing and other performance metrics related to 489 sanctions imposed on firms and individuals involved in World Bank-financed projects from 2007 to 30 June 2017 (not including cross-debarments or sanctioned affiliates). Per the OSD report, most of these sanctions resulted in debarments.
In April 2010, the World Bank and four other multilateral development banks (MDBs) – the African Development Bank, the Asian Development Bank, the European Bank for Reconstruction and Development, and the Inter-American Development Bank Group – each agreed to cross-debar any firm debarred by another MDB for engaging in corruption or fraud on an MDB-financed development project. Mutual enforcement is subject to several criteria, including that the initial debarment is made public and the debarment decision is made within 10 years of the misconduct. The agreement also provides for wider enforcement of cross-debarment procedures by welcoming other international financial institutions to join the agreement after its entry into force. According to recent annual updates issued by INT, the World Bank has crossed-debarred hundreds of entities over the past five years, including 73 in the fiscal year 2018.
In October 2010, the World Bank announced the creation of the International Corruption Hunters Alliance (ICHA) to connect anti-corruption authorities from different countries and aid in the tracking and resolving of complex corruption and fraud investigations that are cross-border in nature. According to the World Bank, the ICHA, which organises biennial meetings, has succeeded in bringing together more than 350 enforcement and anti-corruption officials from more than 130 countries in an effort to inject momentum into global anti-corruption efforts.
Finally, the World Bank has significantly expanded its partnerships with national authorities and development organisations in recent years to increase the impact of World Bank investigations and increase the capacity of countries throughout the world to combat corruption. For example, since 2010, the World Bank has entered into more than 50 cooperation agreements with authorities such as the:
- UK Serious Fraud Office;
- European Anti-Fraud Office;
- International Criminal Court;
- United States Agency for International Development;
- Australian Agency for International Development;
- Nordic Development Fund;
- Ministry of Security and Justice of the Netherlands;
- Liberia Anti-Corruption Commission; and
- Ombudsman of the Philippines.
In the coming years, the World Bank’s prestige and leverage promise to be significant forces in combating official corruption, although the World Bank continues to face resistance from countries in which corrupt practices are found to have occurred.
International anti-corruption conventions
Watershed developments in the creation of global anti-corruption law came with the adoption of a series of international anti-corruption conventions between 1996 and 2005. Although attention in the early 1990s was focused on the Organisation for Economic Cooperation and Development (OECD), the Organisation of American States (OAS) was the first to reach an agreement, followed by the OECD, the Council of Europe and the African Union. The most recent, and most ambitious, is the UNCAC, adopted in 2003. The events unfolded as follows.
On 29 March 1996, OAS members initialled the Inter-American Convention against Corruption (IACAC) in Caracas. The IACAC entered into force on 6 March 1997, and 34 member countries have now ratified it. The IACAC requires each signatory country to enact laws criminalising the bribery of government officials. It also provides for extradition and asset seizure of offending parties. In addition to emphasising heightened government ethics, improved financial disclosures and transparent bookkeeping, the IACAC facilitates international cooperation in evidence gathering.
In 1997, 28 OECD member states and five non-member observers signed the Convention on Combating Bribery of Foreign Officials in International Business Transactions (the OECD Convention), which was subsequently ratified by the requisite number of parties and entered into force on 15 February 1999. Forty-four countries in all, including nine countries not currently members of the OECD, have now signed and ratified the OECD Convention; the most recent of these is Peru, which deposited its instrument of accession to the Convention in May 2018 and was accepted as a party to the Convention on 27 July 2018.
States that are parties to the OECD Convention are bound to provide mutual legal assistance to one another in the investigation and prosecution of offences within the scope of the Convention. Moreover, such offences are made extraditable. Penalties for transnational bribery are to be commensurate with those for domestic bribery, and in the case of states that do not recognise corporate criminal liability, such as Japan, the Convention requires such states to enact ‘proportionate and dissuasive non-criminal sanctions’.
In terms of monitoring implementation and enforcement, the OECD has set the pace. The OECD Working Group on Bribery (the Working Group) monitors member countries’ enforcement efforts through a regular reporting and comment process. After each phase, the Working Group’s examiners will issue a report and recommendations, which are forwarded to the government of each participating country and are posted on the OECD’s website.
In Phase 1 of the monitoring process, examiners assess whether a country’s legislation adequately implements the OECD Convention. In Phase 2, examiners evaluate whether a country is enforcing and applying this legislation. In Phase 3, examiners evaluate the progress a country has made in addressing weaknesses identified during Phase 2, the status of the country’s ongoing enforcement efforts, and any issues raised by changes in domestic legislation or institutional framework.
As nearly all signatories to the OECD Convention had undergone these three phases of monitoring, in March 2016 the Working Group launched Phase 4, which focuses on:
- key group-wide cross-cutting issues;
- the progress made on addressing any weaknesses identified in previous evaluations;
- enforcement efforts and results; and
- any issues raised by changes in the domestic legislation or institutional framework of each participating country.
According to the OECD, Phase 4, which is expected to continue to 2024, seeks to take a tailored approach, considering each country’s unique situation and challenges, and reflecting positive achievements.
On 26 November 2009, the OECD Council issued its first resolution on bribery since the adoption of the OECD Convention. Entitled the Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions, the resolution urges member countries to continue to take meaningful steps to deter, prevent and combat the bribery of foreign public officials, not only on a national level, but also on a multi-national level, with rigorous and systemic follow-up. Among other things, the resolution recommends that member countries ‘encourage companies to prohibit or discourage the use of small facilitation payments’, and to always require accurate accounting of any such payments in the companies’ books and records. The resolution was supplemented by two annexes setting out ‘Good Practice Guidance’ – one for member countries and one for companies.
Council of Europe conventions
On 4 November 1998, following a series of measures taken since 1996, the member states of the Council of Europe and eight observer states, including the United States, approved the text of a new multilateral convention – the Criminal Law Convention on Corruption. A year later, the parties adopted the Civil Law Convention on Corruption. Forty-eight countries have ratified the Criminal Convention, which entered into force on 1 July 2002, while 35 countries have ratified the Civil Convention, which entered into force on 1 November 2003.
The Criminal Convention covers a broad range of offences, including domestic and foreign bribery, trading in influence, money laundering and accounting offences. Notably, it also addresses private bribery. The Criminal Convention sets forth cooperation measures and provisions regarding the recovery of assets. Similar to the OECD Convention, the Criminal Convention establishes a monitoring mechanism – the Group of States against Corruption – to conduct mutual evaluations.
The Civil Convention provides for compensation for damage that results from acts of public and private corruption. Other measures include civil law remedies for injured persons, the invalidation of corrupt contracts and protection for whistle-blowers. Compliance with the Civil Convention is also subject to peer review.
African Union Convention
The African Union Convention on Preventing and Combating Corruption was adopted on 1 July 2003. To date, 40 of the 49 signatories have ratified it.
The Convention covers a wide range of offences including bribery (domestic and foreign), diversion of property by public officials, trading in influence, illicit enrichment, money laundering and concealment of property. The Convention also guarantees access to information, the participation of civil society and the media in monitoring the agreement. Other articles seek to ban the use of funds acquired through illicit and corrupt practices to finance political parties and require state parties to adopt legislative measures to facilitate the repatriation of the proceeds of corruption.
The most far-reaching, and potentially most important, of all of the international conventions is the UNCAC. One hundred and forty countries have signed this convention, which was adopted by the United Nations General Assembly on 31 October 2003. The UNCAC entered into force on 14 December 2005 and 186 countries are now party to it, though not all are signatories.
The UNCAC addresses six principal topics:
- mandatory and permissive preventive measures applicable to both the public and private sectors, including accounting standards for private companies;
- mandatory and permissive criminalisation obligations, including obligations with respect to public and private sector bribery, and trading in influence and illicit enrichment;
- private rights of action for the victims of corrupt practices;
- anti-money laundering measures;
- cooperation in the investigation and prosecution of cases, including collection actions, through mutual legal assistance and extradition; and
- asset recovery.
Windows into the fast-changing landscape of enforcement of anti-corruption laws and conventions are provided by:
- public dispositions of anti-corruption enforcement actions;
- media reports of official and internal investigations;
- disclosures in corporate filings with securities regulatory agencies and stock exchanges;
- private litigation between companies and former employees;
- monitoring reports by international organisations;
- voluntary corporate disclosures;
- occasional confessions or exposés of implicated individuals;
- public statements by enforcement officials;
- statistics compiled by NGOs and international organisations; and
- findings of anti-corruption commissions, World Bank reports and academic studies.
Although public knowledge of official investigations and enforcement activity often lags, sometimes by years, the available indicators suggest ever-increasing enforcement activity. Without going beyond the public domain, a few recent examples indicate the breadth and diversity of anti-corruption enforcement, including international cooperation, extraterritorial and parallel enforcement, the use of liberalised bank secrecy laws and a growing array of penalties and sanctions.
Operation Car Wash
In the spring of 2014, the Federal Police of Brazil launched a money laundering investigation into, among other things, allegations of corruption at Petróleo Brasileiro SA (Petrobras), Brazil’s state-controlled oil company. In less than two years, the investigation had gone global, with enforcement authorities from countries around the world, including the United States, joining Brazil in investigating alleged improper payments to Petrobras personnel, as well as to a range of other Brazilian officials, including several high-ranking politicians and officials from other Brazilian state-owned or controlled entities. Operação Lava Jato (Operation Car Wash) has led to criminal indictments against 282 individuals to date and has expanded to include many non-Brazilian companies. Since mid-2015, Brazilian authorities have succeeded in securing a large number of prominent convictions related to these indictments. For example, on 8 March 2016, a Brazilian court sentenced Marcelo Odebrecht, the former chief executive of Odebrecht SA, a major Brazilian construction conglomerate, and one of Brazil’s wealthiest businessmen, to 19 years and four months’ imprisonment for various offences, including money laundering, corruption and criminal association, for his role in the payment of bribes to Petrobras officials to win favourable contracts. Several other executives of the conglomerate, along with several Petrobras officials, have also been convicted and sentenced for their participation in the scheme.
On 14 September 2016, Brazilian prosecutors charged Luiz Inácio Lula da Silva, Brazil’s president between 2003 and 2011, with several offences, including money laundering and passive corruption, for allegedly receiving personal benefits in exchange for facilitating lucrative contracts with Petrobras and for participating in a scheme that involved using bribes paid by Petrobras contractors for political gain. In the months following this initial indictment, prosecutors have added to the list of charges against Silva as Operation Car Wash developed. On 12 July 2017, the former president was convicted of passive corruption and money laundering and sentenced to 9.5 years in prison for allegedly accepting more than US$1 million in kickbacks from a Brazilian engineering firm. On appeal, a federal appellate court not only unanimously upheld Silva’s conviction, but voted to increase his prison sentence from 9.5 years to 12 years and one month. Silva was arrested on 7 April 2018, shortly after Brazil’s Supreme Federal Court rejected his habeas petition, and began serving his 12-year sentence.
On 21 December 2016, Brazilian authorities, alongside their US and Swiss counterparts, announced a coordinated global settlement with Odebrecht and its petrochemical unit, Braskem SA, in connection with the underlying misconduct outlined above. To resolve criminal and civil charges at the corporate level, the companies agreed to pay at least US$3.5 billion in fines and disgorgement of profits to government authorities in Brazil, Switzerland and the United States, making it the largest collective foreign bribery resolution in history.
On 22 December 2017, Keppel Offshore & Marine Ltd (Keppel), a Singapore-based company that operates shipyards and repairs and upgrades shipping vessels, entered into a leniency accord with Brazilian prosecutors as part of a global settlement with authorities in Brazil, Singapore and the United States. The settlement agreements cover conduct spanning from 2001 through 2014, including allegations that executives from Keppel and its wholly-owned US subsidiary (Keppel USA) conspired to pay and paid bribes to employees of Petrobras and to the Workers’ Party of Brazil, a Brazilian political party, in connection with a number of local projects in Brazil. As part of the global settlement, Keppel agreed to pay a global penalty totalling more than US$422 million, including US$211 million to Brazilian authorities, US$105 million to Singaporean authorities and US$105 million to US authorities, which reflected significant credit based on the company’s substantial cooperation.
On 27 September 2018, Brazilian and US authorities announced a coordinated settlement with Petrobras on charges arising out of its role at the centre of the Operation Car Wash scandal. To resolve criminal and civil charges at the corporate level, Petrobras agreed to pay a total of US$1.787 billion in fines and disgorgement of profits to government authorities in Brazil and the United States, though this amount was reduced by certain offsets and credits, reflecting, for instance, payments made to specified charitable and settlement funds. The settlement documents noted Petrobras’s prompt and significant cooperation upon learning of the corruption and bribery scheme described above.
According to Brazil’s Federal Public Prosecutor’s Office, as of 15 October 2018, Operation Car Wash has led to 548 international cooperation requests and the convictions of 140 individuals.
On 28 March 2018, Canada announced that it had introduced amendments to its Integrity Regime to create a ‘made-in-Canada’ version of the deferred prosecution agreements (DPA): a Remediation Agreement Regime. According to the Canadian government, Remediation Agreements ‘would help to advance compliance measures, [and] hold eligible organisations accountable for misconduct, while protecting innocent parties such as employees and shareholders from the negative consequences of a criminal conviction of the organisation’. The Canadian government explained that the Remediation Agreement Regime would create incentives for companies to self-disclose to authorities and enhance their compliance programmes. Remediation Agreements will be subject to judicial approval and oversight, as well as to prosecutorial discretion. The addition of the Remediation Agreement Regime to Canada’s Integrity Regime was reflected in an updated Ineligibility and Suspension Policy released on 15 November 2018, and came into effect on 1 January 2019.
On 8 November 2016, France adopted the Sapin II law, legislation that significantly strengthens the country’s anti-corruption regime, which had been criticised by the OECD as being out of step with the country’s treaty obligations. The new law eliminates certain prerequisites that greatly curtailed the jurisdictional reach of the French law, including provisions that permitted jurisdiction only when:
- a victim or wrongdoer was a French citizen;
- the conduct at issue was an offence in both France and the place where the conduct occurred; and
- the complaint was filed by either a victim or a relevant foreign authority (the ‘dual criminality’ requirement).
Of note, the Sapin II law requires companies and presidents, directors and managers of companies with more than 500 employees and annual gross revenues exceeding €100 million to implement an anti-corruption compliance programme containing a variety of components, including a code of conduct, accounting controls, and training programmes for high-risk employees. The law also established the French anti-corruption agency (AFA), which has expanded enforcement powers beyond those of the Central Service for the Prevention of Corruption, the former agency responsible for enforcement of the laws. Among other things, the AFA will be in charge of:
- assisting in preventing and detecting corruption;
- verifying that companies that are required to adopt compliance programmes have such programmes in place;
- reporting possible violations of the law to prosecutors; and
- overseeing corporate monitorships.
In a new development within the French legal system, the Sapin II law also created a new mechanism for resolving certain corporate criminal proceedings; primarily those involving financial crimes, including cases of domestic and foreign corruption. These judicial public interest agreements (CJIPs) have frequently been compared to US-style DPAs. Although cooperating companies will have to agree to the facts enumerated in a CJIP, they will not be required to admit guilt. Under a CJIP, companies can be fined an amount equal to the benefit secured through the illicit activity, up to 30 per cent of the company’s average revenue for the past three years.
On 22 December 2017, approximately one year after Sapin II entered into force, the AFA published its first official anti-corruption guidance: ‘Guidelines to help private and public sector entities prevent and detect corruption, influence peddling, extortion by public officials, unlawful taking of interest, misappropriation of public funds and favouritism’ (the Guidelines). Although not legally binding, the Guidelines, which are consistent with international anti-corruption compliance best practices, are intended to provide a framework around which organisations can develop their compliance policies and programmes. The stated scope of coverage of the Guidelines is broad. They apply to ‘all private and public-sector entities, regardless of their size, legal structure, business area, revenue or number of employees’ and ‘are applicable everywhere on French territory’. Further, the Guidelines reach ‘all companies, including subsidiaries of foreign groups, if such subsidiaries are established in the French Republic’ and all such ‘corporations and entities, regardless of where they do business, including other countries that do not have more rigorous standards for preventing and detecting corruption’.
HSBC Private Bank
On 28 November 2017, France’s National Financial Prosecutor, Éliane Houlette, entered into the country’s first CJIP resolution pursuant to the Sapin II law with HSBC Private Bank – the Geneva-based private banking unit of a global financial institution. Under the settlement, the Swiss unit agreed to pay €300 million to resolve allegations that it had helped French clients to evade taxes and launder money.
SET Environnement and Kaeffer Wanner
On 7 March 2018, the AFA announced CJIP settlements between the Public Prosecutor’s Office of Nanterre and the French companies SET Environnement (SET) and Kaeffer Wanner (KW), which mark the first CJIPs based on bribery charges under Sapin II. According to both agreements, the investigation into the corruption schemes started in July 2011, when the Director of Security at Electricité de France (EDF), a partially state-owned company, informed the police of a years-long corruption scheme inside the EDF purchasing department, whereby a member of the department was demanding payments in return for awarding or continuing contracts. This investigation eventually revealed that SET, a pollution clean-up company with 125 employees, and KW, a larger company contracting across multiple sectors with nearly 1,800 employees, had each made payments to the EDF employee over several years in exchange for numerous contracts that resulted in illicit profits for each company totaling €680,000 and €3.3 million, respectively. Under the CJIPs, SET was fined a total of €800,000 and placed under a two-year monitorship, while KW was fined a total of €2.71 million and placed under an 18-month monitorship.
On 4 June 2018, the French financial services company Société Générale (SocGen) and its subsidiary SGA Société Générale Acceptance NV (SGA SocGen) entered into a coordinated settlement with the French Parquet National Financier (PNF) and US DOJ, agreeing to pay a collective US$585.5 million in criminal penalties to resolve anti-corruption charges involving the bank’s operations in Libya. The resolution, which was shared between the agencies, was part of a broader US$1.3 billion settlement with the PNF, DOJ and US Commodity Futures Trading Commission that also covered charges that SocGen had helped to manipulate the London Interbank Offered Rate (Libor), a UK benchmark interest rate that has been at the centre of numerous criminal charges against large financial institutions.
The anti-corruption charges against SocGen and its subsidiary arose out of an alleged scheme by their employees to bribe a close relative of Libyan leader Muammar Gaddafi and several state bank employees with cash payments, travel, gifts and entertainment from about 2006 to 2009. SocGen employees reportedly channelled the bribes through a Libyan intermediary, to whom they provided commission payments that were recorded in the bank’s records as being for ‘introduction’ services or the like. In exchange, the Gaddafi relative and bank employees allegedly used their influence to cause the Libyan government to invest more than US$3.66 billion with SocGen, which resulted in approximately US$523 million in profit for the bank.
The SocGen settlement represents the first coordinated FCPA-related settlement between US and French authorities.
In 2018, the DOJ and the SEC resolved 31 FCPA-related enforcement actions. These cases involved both US and non-US individuals and corporations and imposed a range of civil and criminal penalties. Corporate defendants resolved these cases by entering into DPAs, non-prosecution agreements and plea agreements. In some instances, a condition of settlement has been that the company retain and pay for an ‘independent compliance monitor’, who is given broad authority. In other instances, the company has been required to ‘self-report’ at periodic intervals on the status of its remediation and compliance efforts. In the past, the US enforcement agencies have also imposed a hybrid of the two, requiring companies to retain and pay for an ‘independent compliance monitor’ during the first half of their probationary period and ‘self-report’ at periodic intervals during the second half.
The pace of enforcement this year, with 31 FCPA-related dispositions to date, is below the annual average of approximately 38 resolved FCPA enforcement actions over the past 10 years, but remains in the same general proximity. The decline in enforcement this year has been driven by a drop in the number of resolved actions against individuals from 18 to 10, with the number of corporate enforcement actions actually increasing to 21 in 2018 compared with 17 in 2017. These numbers are well within the typical variation we may expect to see from year to year though and do not necessarily reflect a larger trend. Enforcement levels remain high, however, from historical perspective. Over the past decade, the DOJ and the SEC have averaged nearly 38 FCPA enforcement actions a year, compared with approximately four a year during the first 28 years following the statute’s enactment.
The DOJ and SEC have imposed more the US$996.5 million in monetary penalties (including fines, disgorgement of profits and payment of prejudgment interest) in corporate FCPA cases this year, for an average of nearly US$58.6 million per combined enforcement action, which is down from, but on a par with, the average over the past 10 years of US$68.7 million. These penalty amounts, however, significantly eclipse those imposed by earlier FCPA settlements. For example, the average corporate FCPA penalty in cases before 2005 was only US$2 million and from 2005 to 2007 was only US$11.1 million.
Despite a drop in the prosecution of individuals this year, individuals have increasingly been targets of prosecution by US authorities and have been sentenced to prison terms, fined heavily or both. Since 2010, 135 individuals have been charged with criminal or civil violations of the FCPA, and this emphasis by US enforcement authorities on the prosecution of individuals shows no signs of letting up. On 9 September 2015, the then Deputy Attorney General Sally Yates issued a memorandum entitled Individual Accountability for Corporate Wrongdoing (or ‘Yates Memo’) to federal prosecutors nationwide detailing new DOJ policies that require a corporation that wants to receive credit for cooperating with the government to provide ‘all relevant facts’ about employees at the company who were involved in the underlying corporate wrongdoing. The DOJ’s 2016 FCPA enforcement pilot programme furthered this aim by explicitly conditioning the benefits provided for a company’s voluntary self-disclosure on compliance with the Yates Memorandum. On 29 November 2017, Deputy Attorney General Rod Jay Rosenstein announced the DOJ’s new FCPA Corporate Enforcement Policy, which extended and codified the pilot programme’s various elements through incorporation into the United States Attorneys’ Manual, including the requirement that a company seeking the full benefit of a voluntary self-disclosure must turn over all relevant facts related to the individuals involved.
Finally, on 29 November 2018, Rosenstein, in an effort to address elements of the Yates Memo that had proven to be problematic in practice, announced some important limitations to the policy, most significantly a relaxation of the requirement that cooperating companies provide information on all individuals involved in some way in the underlying misconduct. As revised, the policy now only requires cooperating corporations to provide information relating to individuals who were ‘substantially involved’ in, or responsible for, corporate misconduct.
Among other notable developments this past year, several companies entered into substantial ‘global’ settlements to resolve FCPA-related charges in multiple jurisdictions simultaneously, including the aforementioned settlements with Keppel Offshore & Marine Ltd, Petróleo Brasileiro SA and Société Général, continuing the ongoing trend of coordination and international cooperation between the United States and an increasing number of countries.
This small sample of the diverse array of investigations and prosecutions under way or pending reflects a pronounced shift in anti-corruption law and a dramatic escalation of enforcement activity compared with only a decade ago.
As yet untested is the provision in article 35 of the UNCAC, which creates a private right of action for entities or persons who have suffered damage as a result of bribery of public officials or other acts of corruption covered by the UNCAC. The United States provides no private right of action consistent with article 35, as it maintained a reservation against this requirement when ratifying the UNCAC. However, a private right of action can be available within the United States through other means. For instance, US law allows those injured in certain circumstances to bring a cause of action and seek compensation under the Racketeer Influenced and Corrupt Organizations Act (RICO) or as part of a civil securities suit. Recent examples of such litigation include actions against Odebrecht, Wal-Mart Stores Inc, Alcoa Inc, Avon Products Inc and Bio-Rad Laboratories Inc, all of which were filed in recent years, based in part on alleged FCPA violations.
Anti-corruption compliance programmes
The rapid changes in legal structures and enforcement have, in turn, contributed to a new corporate phenomenon and legal discipline – the widespread institution of anti-corruption compliance programmes within multinational corporations. Programmes that would have been innovative and exceptional in the early 1990s are becoming de rigueur. ‘Best practices’ have become a standard by which many companies seek to measure their own efforts and those standards continue to rise. Spurred by government pronouncements, regulatory requirements, voluntary corporate codes and the advice of experts as to what mechanisms best achieve their intended purposes, anti-corruption compliance programmes have become common, and often sophisticated, in companies doing business around the world.
As a result, anti-corruption codes and guidelines, due diligence investigations of consultants, business partners or merger targets, contractual penalties, extensive training, internal investigations, compliance audits and discipline for transgressions have all become familiar elements of corporate compliance programmes. The OECD’s Good Practice Guidance on Internal Controls, Ethics and Compliance, issued on 18 February 2010, is directed squarely at companies, business organisations and professional associations, and identifies a number of recognised elements of effective compliance programmes:
- a strong commitment from senior management;
- a clearly articulated anti-bribery policy;
- accountability and oversight;
- specific measures applicable to subsidiaries that are directed at the areas of highest risk;
- internal controls;
- documented training;
- appropriate disciplinary procedures; and
- modes for providing guidance and reporting violations.
This guidance is noteworthy both because it is one of the first treaty-based articulations of effective anti-bribery compliance standards and because, on close reading, it emphasises some elements that have received less attention in traditional compliance programmes.
In September 2016, the International Organization for Standardization (ISO) published the final version of its new standard on anti-bribery management systems, ISO 37001, which was developed over the course of four years with the active participation of experts from 37 countries. The standard is designed to be used as a benchmark by independent, third-party auditors to certify compliance programmes. In terms of substance, the standard largely tracks the OECD’s Good Practice Guidance and guidance previously published by UK and US enforcement authorities. Thus, the key substantive aspects of ISO 37001 will be largely familiar to experienced compliance professionals. What is as yet unclear, however, is the level of deference that enforcement authorities around the world will provide to the new standard. Although seeking to obtain ISO 37001 certification may help to demonstrate a company’s commitment to compliance, such a certification is unlikely to shield a company facing an investigation by enforcement authorities. Furthermore, there are a host of questions surrounding the new standard, which lacks detail on certain areas of concern. For instance, how responsive will ISO 37001 be to the evolving compliance expectations of relevant enforcement authorities? At the very least, companies that have yet to establish mature compliance environments should find the ISO 37001 standard to be a useful metric, as should vendors aiming to work for multinational companies, which can use an ISO certification to help establish their anti-corruption credentials during corporate due diligence.
Against this backdrop, the expert summaries of countries’ anti-corruption laws and enforcement policies that this volume comprises are becoming an essential resource. It is within this legal framework that the implementation of anti-corruption conventions and the investigations and enforcement actions against those suspected of violations will play out. Our thanks to those firms that have contributed to this edition for their timely summaries and for the valuable insights they provide.