Enlisting the Private Sector in the Fight Against Corruption — Part 2

Part 1 of this post lists 21 countries plus the Canadian province of Quebec that have taken measures to get corporations to join the fight against corruption.  Thanks to a bad case of jet lag, the post’s author ran out of steam before explaining what he meant by a company’s “joining the fight” or how countries got them to join it.  Herewith an explanation of both along with my apologies to readers puzzled by part 1.

To begin, a table summarizing the laws to which part 1 referred along with summaries of bills pending in the Irish and Vietnamese legislatures appears here: National Compliance Rules.  (Thanks to readers who caught errors in the part 1 list; similar scrutiny of the table solicited.)

As the table shows, the laws referenced require — or provide incentives for — companies under their jurisdiction to prevent their employees from paying bribes or engaging in other forms of corrupt conduct.  Some laws prescribe in detail the elements such an anticorruption compliance program should contain; others leave it to regulations or the courts to decide what companies must do.  With the October 2016 publication of ISO 37001 setting standards for corporate antibribery programs, most authorities will likely converge around the elements it recommends.   The recommendations are sensible and quite consciously track the experience of those countries that required corporate compliance programs, especially the United States, where guidelines on what constitutes an “effective” compliance program, drafted to help courts when deciding the culpability of corporations for the corrupt acts of employees and agents, have been in force since 2004.

Where national corporate compliance laws differ is in how countries “encourage” companies subject to their laws to institute a compliance program. The table reveals several approaches. Continue reading

Argentina’s Draft Bill on Corporate Criminal Liability for Bribery: Some Striking Innovations on Sanctions

A few weeks ago, I had the good fortune to be able to attend an event at the University of Buenos Aires (co-sponsored by the New York University Law School), that focused, among other things, on a new draft bill, currently under consideration in the Argentinian legislature, that would impose criminal liability on corporations and other legal persons for corruption-related offenses. I’m largely unfamiliar with Argentina’s legal system, so I was very much an outside observer for this discussion, but there were a couple of things about the draft bill that struck me as interesting and worthy of attention from the wider anticorruption community. (Apologies for not providing a link: I’m working off a hardcopy of an unofficial English translation of the draft bill, which I can’t find on the web.)

A lot of the provisions in the bill are fairly standard, though in many respects the bill is quite aggressive. For example, Article 3 makes parent companies jointly and severally liable for sanctions imposed on their subsidiaries (without any requirement to show that the subsidiary was an agent of the parent), while Article 4 imposes successor (criminal) liability in all cases of merger, acquisition, or other corporate transformation. In both these respects, the draft Argentinian bill imposes more sweeping corporate criminal liability than does U.S. law. Also, like U.S. law, the Argentinian bill (in Article 2) would make corporations criminally liable for the actions of its officers, employees, and agents.

But what most caught my attention were the draft bill’s provisions on sanctions: Continue reading

Guest Post: A Behavioral Science Approach to Preventing Corruption

Johann Graf Lambsdorff, Professor of Economic Theory at Passau University, contributes the following guest post:

Some of our current approaches to corruption prevention perform badly. One reason is that many preventive methods are built on distrust towards officials and employees, who are seen as potentially corrupt actors. Yet research in behavioral science has provided us with impressive evidence that (many) people are (mostly) trustworthy, intrinsically motivated, and responsive to encouragement, praise, expressions of gratitude, and criticism. The problem with assuming that everyone is prone to engage in corruption if not carefully monitored is not only that prevention strategies premised on that assumption are very costly, but also that such approaches can be counterproductive: The atmosphere of distrust that they create can reduce interpersonal trust, intrinsic motivation, and the self-esteem that people get from contributing to public goods and working responsibly.

Economists have labelled these adverse collateral consequences “the hidden costs of control.” In a recent paper entitled “Preventing Corruption by Promoting Trust – Insights from Behavioral Science”, I explain how taking this phenomenon, as well related insights from behavioral sciences about creating positive incentives for good behavior, can help us design more effective policies. The paper illustrates this with the help of six examples: Continue reading

NYU Roundtable on the DOJ Fraud Section’s New “Corporate Compliance Counsel”: The Video and Some Thoughts

As many readers are likely aware, the U.S. Department of Justice Fraud Section (now headed by Andrew Weissmann), which has responsibility for enforcing the Foreign Corrupt Practices Act (among other things), recently created a new position called the “Corporate Compliance Counsel,” and appointed to the post Hui Chen, a former corporate compliance officer for a number of major firms (including Microsoft, Pfizer, and Standard Chartered). The avowed purpose of the new position is to assist the DOJ in assessing the quality of a company’s internal compliance program and remediation measures. In the FCPA context (and others), these assessments are relevant to the DOJ’s decisions regarding whether to prosecute, what penalties to seek, and what additional remedial measures to pursue, even though there is not a formal “compliance defense” under the FCPA (or other statutes that the Section enforces). Thus, the thinking behind the creation of the new DOJ position seems to be that having someone in the Section with a lot of background in corporate compliance will enable the DOJ prosecutors to do a better job in evaluating the quality of a company’s compliance program and remedial efforts.

The creation of the Corporate Compliance Counsel position has garnered praise in some quarters, but also attracted some criticism; the critics tend to argue that the creation of the new position is, at best, a public relations move with little real consequence, and at worst an indirect effort to weaken the enforcement of corporate criminal laws.

Last week, the NYU Program on Corporate Compliance and Enforcement (PCCE) hosted a public forum where Mr. Weissmann and Ms. Chen discussed the new position and answered some questions posed by NYU Professor (and PCCE co-director) Jennifer Arlen. Because I thought that this might be of interest to some readers, here’s a link to a video of the discussion.

A few additional thoughts about what I thought were the more interesting exchanges: Continue reading

Spain’s New Corporate Compliance Defense: What Impact Will It Have?

In the world of foreign anti-bribery law, there has been much discussion (including on this blog – see here and here) about whether to adopt a so-called “compliance defense” that would allow corporate defendants to escape criminal liability for bribery committed by their agents if the corporation can show that it had an adequate compliance system in place. Some countries’ foreign bribery laws – most notably the US Foreign Corrupt Practices Act – do not have such a defense; others – most notably the UK Bribery Act – do (though the UK Act combines the defense with strict corporate liability not only for the acts of employees, but also of other agents). Spain recently joined the latter group of countries with an amendment to its criminal law (Article 31 bis) that went into effect last month (see summaries here and here). That amendment (which covers not only Spain’s foreign bribery offense, but also domestic bribery and other corporate criminal offenses) allows the corporation to avoid criminal liability if it can establish that, prior to the commission of the crime, the board of directors implemented an adequate compliance program that meets certain requirements laid out in the statute.

Proponents of the compliance defense cheered. And a report on the new law from the law firm Miller & Chevalier predicted that this legal change “should encourage companies doing business in Spain to adopt a rigorous compliance program”—a claim that presumably would also apply to Spanish companies doing business abroad, given that the provisions also apply to Spain’s foreign bribery offense.

I’m not so sure, for reasons I’ve discussed before, but I do think the change in the Spanish law might provide an interesting opportunity to test the hypothesis. Continue reading

The Economist Gets It Badly Wrong on Anti-Bribery Law

Last week, The Economist published an op-ed entitled “Daft on Graft,” which argued that the enforcement of transnational anti-bribery laws like the U.S. FCPA and U.K. Bribery Act is “becoming ridiculous,” with costs that are “spiraling beyond what is reasonable,” and that we are now witnessing “a descent into investigative madness.”

If I spent all my time responding to poorly-reasoned claptrap that looks like it was written either by a shill for business lobbyists or by someone who didn’t know much about the topic, I wouldn’t have time to do anything else. But when such claptrap appears in a widely-read, well-respected publication like The Economist, I can’t just let it pass. I know, I know—it may be unfair to beat up on a short op-ed, a format that doesn’t lend itself to in-depth analysis or nuance. But still, even by the standards of op-eds in popular periodicals, this is pretty bad. The diagnosis of the problem is shrill, one-sided, and hyperbolic, and the proposed reforms are either already in place, or misguided.

Maybe the best way to approach this is to consider each of the op-ed’s four proposed “reforms” to anti-bribery law enforcement one at a time: Continue reading

The FCPA Under Attorney General Loretta Lynch

After the third longest wait for Senate confirmation in history, Loretta Lynch finally received approval to be the next Attorney General of the United States on April 23. When she assumes her position as the head of the U.S. Department of Justice, complex challenges related to cybersecurity and community-police relations will likely be at the top of her list of undertakings. But Lynch has also vowed to make continuing the DOJ’s commitment to fighting global corruption “a top priority.”

Indeed, Lynch has substantial FCPA experience – more than any previous Attorney General (unsurprising, given that it was her two predecessors, Eric Holder and John Ashcroft, who largely oversaw the ascendance of the FCPA regime). As the U.S. Attorney for the Eastern District of New York, Lynch collaborated with the DOJ’s Fraud Section to secure the Ralph Lauren and Comverse non-prosecution agreements. She as worked on the other side as well. As a partner at Hogan & Hartson, she conducted internal investigations, advised clients that had run afoul of the FCPA, and conducted continuing legal education classes on anticorruption. As lawyers, scholars, and business leaders debate the need for FCPA reform (see, for example, here and here), what might the new Attorney General mean for the enforcement regime?

Continue reading