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Progress in Anti-Bribery Enforcement – Risk on Door Step?

Across the globe, there is remarkable progress in enforcement environment against corruption.  In 2015, there were many anti-corruption actions in United States and many other countries. This worldwide boom of anti-corruption efforts puts pressure on multinational companies doing business in potentially high risk environment. Companies now need to take specific measures to mitigate the increased risk associated with business, transparently.

The US Department of Justice and the U.S Securities and Exchange Commission are no longer the only two organizations working towards anti-bribery enforcement. Many countries are battling corruption and intergovernmental cooperation against bribery is on rise. Parallel enforcement actions involving multiple jurisdictions is another challenge for businesses operating in many nations.

Why and how it started…….

The United States Jurisdiction was the first to criminalize the bribery of foreign officials under the Foreign Corrupt Practices Act (FCPA), 1977. This legislation was regarded for its fair enterprise but lacked global equivalency. The other countries started criminalizing foreign bribery only in late 1990s. Later a series of international treaties addressing bribery came into existence, i.e.Organization for Economic Co-operation and Development’s (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the United Nations Convention against Corruption (UNCAC). Though there was rise in legislation against bribery, enforcement was did not keep pace.

According to data released by the OECD in 2014, more than half of the signatories to the OECD’s anti-bribery convention had failed to impose any sanctions for cross-border corruption.(Source:http://www.corporateknights.com/channels/leadership/corruption-interruption-14522328/). However there is a start to stringent enforcement, according to TRACE’s 2014 Global Enforcement Report, there were 211 investigations involving foreign bribery being conducted in 27 countries by the end of that year. While the U.S. leads the world in total enforcement actions overall, in 2014 more enforcement actions were brought outside than within the United States.(Source: http://www.corporateknights.com/channels/leadership/corruption-interruption-14522328/).

Why there is a rise in anti-Bribery Enforcement now

Internal security is the main reason towards the surge in anti-bribery enforcement along with recent decision by a number of countries to arm themselves with the powers to seek out bribery beyond their borders.

There has also been increased international cooperation among enforcement agencies. For example, earlier this year 21 Asia-Pacific Economic Cooperation (APEC) member countries agreed to begin sharing sensitive case information among themselves. The U.S. Department of Justice has stated that almost all FCPA investigations involve an important element of information sharing. The agency has recently worked with authorities in countries as varied as Colombia, Indonesia, Latvia and Saudi Arabia.          (Source:http://www.corporateknights.com/channels/leadership/corruption-interruption-14522328/).

In January 2014, India’s President signed the Lokpal and Lokayuktas Act, 2013, a landmark law aimed at combating corruption by creating an anti-graft “Lokpal” (i.e., ombudsman) with broad powers to prosecute politicians, ministers, and senior civil servants, including the country’s Prime Minister. In March 2014, the Public Works and Government Services Canada (“PWGSC”), the main contracting arm of the Canadian federal government, implemented measures to strengthen its “Integrity Framework,” which has the stated goal of supporting accountability and integrity in federal government contracts and real property transactions. In February 2014, the European Commission published the first E.U. Anti-Corruption Report, highlighting the enhanced visibility of anti-corruption issues on the political agendas of E.U. Member States in the wake of the financial crisis. (Source: https://www.cov.com/files/Publication/446fa508-b853-4f88-a902-615eb62a28aa/Presentation/PublicationAttachment/1c4f86eb-6ce7-4115-aed6-67bd2d1e5ee6/Trends_and_Developments_in_Anti-Corruption_Enforcement_Winter_2015.pdf).

In 2013, Brazil passed the Clean Companies Act, which gives Brazilian authorities jurisdiction over any company with a branch, registered office or other representation in Brazil. While Australia is considering expanding the reach for its foreign bribery offences, authorities are investigating a surge of foreign bribery allegations within the country. And, as of last year, the U.K. Serious Fraud Office was pursuing cases against 37 defendants. (Source:http://www.corporateknights.com/channels/leadership/corruption-interruption-14522328/).

Companies are now more than willing to disclose their wrong doing to government authorities if any along with the anti-bribery enforcement machinery being adopted by them in their annual and sustainability reports as a part of Business ethics and transparency. There has been an increase in whistleblower policy not just in US and other countries there is a considerable increase of Whistle blowing in public and private spaces, in China and India as well.

The SEC has stated that 30 per cent of its foreign bribery investigations began after being contacted by a whistleblower. In China, this figure is as high as 80%.According to Deloitte’s 2015 Compliance Trends Survey, more than half of African companies surveyed had increased their compliance budgets over the past year.Ernst & Young’s APAC Fraud Survey 2015 found that only 20 per cent of employees of large companies in 14 Asia-Pacific countries stated that they were willing to work for a company involved in bribery or corruption.(Source:http://www.corporateknights.com/channels/leadership/corruption-interruption-14522328/).

Way Forward

The future looks positive in terms of anti-bribery enforcement for countries and corporations as more and more legislation and compliance standards are beginning to rise.

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