In 2009 there are six major international anti-bribery conventions, and new or updated laws criminalizing the bribery of domestic and foreign public officials are sprouting up everywhere. It sounds like we should be nearing the mythical “level playing field,” but while uneven and erratic enforcement remains the greatest obstacle, another dilemma lies buried in the globalization of anti-bribery laws. All the laws are different. Maybe not dramatically different, but they’re different enough – both in text and application – to create unexpected challenges to counsel trying to clear a path for their companies while operating, often, in over a hundred countries.
Let’s start with travel and lodging provided to government officials so they can travel to company headquarters to tour facilities. Like businesses, governments often want to conduct due diligence before entering into significant contracts. Many countries have no budget for this. Some countries permit their officials to accept this sort of payment (or reimbursement), but many others don’t. Of those that don’t, their regulations are often opaque. They may have vague prohibitions about abuse of office or self-enrichment that each supervisor applies as he sees fit.
Even assuming that you can track down and decipher the local laws, there’s still the question of “reasonableness.” Like the U.S. Foreign Corrupt Practices Act (FCPA), many laws require the value of the travel and lodging to be “reasonable.” Reasonable where and to whom? U.S. government officials are pretty accustomed to traveling Economy class. Not so with Russian officials. Most Europeans are content with taxis or minibuses for local transportation. Saudi officials prefer limos.
Facilitating payments are a clear example of laws bumping into laws. The FCPA doesn’t prohibit payments to expedite or secure the performance of routine governmental action by a foreign official, such as mail delivery, police protection, phone service, loading and unloading cargo (Canada, Australia, New Zealand and South Korea have similar exceptions to their anti-bribery laws). On the other hand, the countries in which these payments are made (including, of course, the United States, Canada, Australia, New Zealand and South Korea), prohibit their officials from accepting them. So, a U.S. company is not prohibited by the FCPA from making these grease payments, but they are nevertheless illegal. If an employee makes these payments in-country and accounts for them accurately, he documents a violation of local law. If he accounts for them inaccurately, of course, he violates the books and records provision of most anti-bribery laws. Multinationals hire employees of all citizenships. The likelihood of an inadvertent violation increases with the size of a company. A British employee is not permitted to make a facilitating payment. If the British employee works for a U.S. company that allows them, he must be made to understand that, while these payments are permitted under U.S. law, British law applies to him and doesn’t permit them.
Companies often enter foreign markets by using third party intermediaries to represent them. These intermediaries play an important role in sales strategy and bring local business and linguistic expertise to the table. They may also bring risk. Companies must know who they’re working with and so they must investigate the professional and financial backgrounds and family and government ties of each. These background reports are often conducted in one place and then sent to in-house counsel in another and finally stored in a third for safekeeping. This has become a central part of every well-run company’s compliance program. It sounds straightforward, but this process bumps into local laws. Many countries have rigorous data privacy regulations that control how sensitive information is collected, transmitted and stored – particularly across borders. The need for transparency and the need to protect sensitive information are often in conflict.
In addition to these laws, which are generally published and accessible, regulations often pose additional risks. In many countries, companies are not permitted access to the procurement regulations that govern the conduct of the military. Companies keen to avoid providing travel or other benefits exceeding those permitted by local regulations aren’t able to see the actual regulations. Similarly, in some Asian countries, revolving door regulations governing the transition of military officers to the private sector are not available to companies seeking to comply with local law when hiring.
Some companies conclude that it is sufficient to stay on the right side of the enforcement agencies in the country in which they’re headquartered. Others conclude that the U.S. Department of Justice and Securities & Exchange Commission are the most active internationally, so they work to comply with the U.S. legal framework. Still others take a leap of faith and announce to the world through their corporate policies that they comply with the laws of all countries in which they operate.
Many companies are doing their best in this respect. They know that non-compliance with any laws, anywhere, is likely to have an adverse impact on their company’s reputation. Should things go wrong, a pattern of local law violations – whether because of travel for government officials deemed excessive under local law or collecting data on third parties without consent or other safeguards – could be cast as evidence of shoddy internal controls. A company’s compliance program may itself permit or require the violation of some laws, somewhere, and there may be no way around it.
Most companies try to make the best of things. Knowing their intermediaries’ ties to foreign governments may simply be more important than staying within the strict boundaries of data privacy protection. Risking first class travel for visiting government officials and winning the business may make more sense than restricting the budget and losing the business. These are difficult decisions and they’re made more difficult as each new country comes on-line with its own anti-bribery law. Setting a single high standard and following it everywhere has long been thought to be a reasonable approach and it probably still is. For companies that want to drill down, there are excellent international law firms that can provide this advice as needed, although the expense multiplies with the number of countries.
The TRACE Resource Center summarizes anti-bribery laws and regulations for 95 countries (gifts and hospitality, working with third party intermediaries, etc.), and this database continues to expand. Developing a company’s internal resources can be the most cost-effective approach. Increasingly, companies are identifying regional compliance experts who can help their colleagues steer through the undergrowth. This can result in a better trained compliance team and more timely and cost-effective advice. It can also ensure that, even when laws appear to conflict, the company chooses the best path it can toward the ultimate destination of a transparent and bribe-free business model.
September 2nd, 2010 at 8:04 am
Simply because this really is our first visit to your blog, I merely want to say howdy! Enjoyable blog anyway.
August 27th, 2010 at 5:24 pm
Thanks so much for the article post.Really thank you! Will read on…
July 23rd, 2010 at 7:20 am
I am not new to blogging and sincerely value your website. There is significantly original message that peaks my interest. I am planning to bookmark your online web page and keep examining you out.
July 14th, 2010 at 9:58 pm
This company website gives access to some good people search, criminl checks, background check an real estate search services.
July 8th, 2010 at 6:14 am
Marriages are made in heaven
July 5th, 2010 at 4:09 am
Have to give this a try. More interesting ideas on best netbook dvd burner… have your site bookmarked. Can I share my netbook choise with you? – Asus Eee PC 1005HA-PU17-BK 10.1-Inch Intel Atom Netbook Computer
June 17th, 2010 at 12:27 am
Great to hear the storyof how things actually developed topup to the launch of the station. It seems that there was a lot of luck complicated.
June 14th, 2010 at 5:24 pm
Forex day trading is challenging but can be rewarding!
June 8th, 2010 at 5:52 am
Hi, It seems your website doesn’t work properly with google chrome, check it out if you want.
June 2nd, 2010 at 4:41 pm
You seem to genuinely realize this international bride business. Thank you for taking the time to to explain the details about this situation . I would undoubtedly be grateful for it if you could answer a couple of issues: First, how stressful would it be to get a visa for a stunning international bride? I believe I will probably make the leap and visit Moscow. Those pretty Russian brides are just so awesome! Which foreign dating agency is your special favorite?
May 24th, 2010 at 4:31 pm
Hey all look at what I found while surfing the internet this morning! Wal-Mart is giving away $1000 Gift Cards Wal-Mart store! Visit their official website – http://www.walmartonline.net.tc
May 7th, 2010 at 9:40 am
I love the new touch screen generation because it is easy to switch between different programs. But I think it must give a notebook with a touch screen like the iPad because it is useful by the work. Why nobody offer such notebooks?
May 6th, 2010 at 9:39 am
I have to say, it is surprising how many men I know are dating Asian women. I’ll confess that I do find some Asian ladies to be very attractive, but what do you think the appeal is really about? Why do some white guys only date Asian girls…can somebody explain the attraction to me?
April 29th, 2010 at 1:23 pm
I love3 the blog posts that you hve on all the time and my boyfriend and me certainly look forward to it. Go on and keep up the postings as I am sure you havelots of visitors like us.
April 27th, 2010 at 10:05 am
I’ve been living in Asia for three years so I find this interesting. I’d like to know what you think about dating Asian women, as far as how well they adapt to moving to a Western country. I’ve considered bringing my Vietnamese girlfriend back to Norway with me but I am not sure if she would acclimate to the new environment. I’m curious if anyone here has experience with dating Asian women overseas and bringing them to another country?
April 27th, 2010 at 2:37 am
Hey can I reference some of the content found in this post if I reference you with a linkback?
April 24th, 2010 at 10:24 pm
Many people believe that scientific evidence supports the idea the the theory of evolution is true. In fact everyone who studies the evidence interprets it according to what he already believes is true. Nearly everyone would agree that a Bible believer who studies this evidence is biased and his bias affects his perception of the evidence. But what many overlook is that those who believe in evolution are also biased. They generally start with the assumption that everything that exists can be explained by natural processes without any kind of divine intervention.
April 24th, 2010 at 11:07 am
Amazing Dude, this is very helpful information, thanks.
April 24th, 2010 at 3:19 am
Someone I work with visits your blog regularly and recommended it to me to read too. The writing style is great and the content is relevant. Thanks for the insight you provide the readers!
April 24th, 2010 at 2:24 am
This is the best Blogg.
April 21st, 2010 at 7:49 pm
Someone I work with visits your blog frequently and recommended it to me to read as well. The writing style is great and the content is interesting. Thanks for the insight you provide the readers!
April 21st, 2010 at 2:48 am
The whole computer thing can be overwhelming there is so much you can do. The only limit in the end is your own imagination. I would love to be able to develop software and do programming.
April 20th, 2010 at 3:23 am
There could be several methods to get course of plant machinery for your small business but one of the simplest ways to search online. It would provide you a listing of suppliers in your city or country. You can contact them and ask for worth quotes. A gross sales specialist from the particular dealer will go to and perceive what you are promoting requirements when it comes to purposeful and technical. In case, you end up incapable enough to finalize the deal, it’s most well-liked to take assist from a course of plant professional.
April 19th, 2010 at 6:32 pm
I read your blog all the time and I just thought I’d say keep up the terrific work!
April 14th, 2010 at 11:58 am
Is it possible to suggest me some more articles or website similar to this in connection with Hp server rental Bangalore
April 10th, 2010 at 3:20 pm
Inspiring quotes are a wonderful strategy to employ a quick enhance – I just understand one or two to lift me up
April 2nd, 2010 at 8:22 am
Hello – I must say, I’m impressed with your site. I had no trouble navigating through all the tabs and information was very easy to access. I found what I wanted in no time at all. Pretty awesome. Would appreciate it if you add forums or something, it would be a perfect way for your clients to interact. Great job.
March 25th, 2010 at 9:49 pm
I’m hoping to open a new company, specifically a coffee shop, hence the online research. Reading your posts have give me some great things to think about, thanks for the share and I will return hoping to get even better ideas. :)
March 18th, 2010 at 1:33 am
That rss feature on your blog here is magnificent, you should tell more folks about it in your next post. I haven’t noted it for the first couple of times, now I’m using it every morning to check on any updates. I’m on a real slow dial-up link in Ohio and it’s rather discouraging to sit there and wait for such a long time ’til the page loads… but hey, I just found your rss page and added it to the Google Reader and there you are… I’m always up-to-date! Well buddy, keep up the good work and make that rss button a little bigger so that other people can enjoy that as well :-P
March 16th, 2010 at 8:14 am
This post gave us a significant Brainstorm session of all the possibilities we could utilize on our blog.
March 14th, 2010 at 2:06 pm
Is HP laptops a suitable name of computers? My boyfriend a new laptop may be next week and i was wondering if HP a good enough computer. Who can tell me it last for yers and have long battery. I actually want a MacBook… This thing is too expensive. Thus i was looking about if HP laptops are good laptops.
March 14th, 2010 at 1:24 pm
Help me please HP notebooks a good make of laptops? My brother a new notebook soon and i was wondering if HP a good laptop. Who can tell me it last for yers and have good battery life. I actually want a Sony but that one is to expensive. Thus i was deciding if HP laptops are good laptops.