International business and the risks of FCPA violations

NEW YORK - May 27, 2013 - PRLog -- Travel and the Internet have tremendously minimized the business barriers presented by geographical boundaries. Businesses are more encouraged to cross borders and penetrate foreign markets. While the opportunities are available, companies must comply with various trade agreements, legislations and tax regulations in order to successfully establish and carry out international business.

One of the most important pieces of legislation (http://www.merrillbrink.com/fcpa-and-bribery-act-translation.htm) with which a business must comply is the Foreign Corrupt Practices Act (FCPA). Enacted in 1977, FCPA ensures good practice in business is carried out by any person or organization that has a certain degree of connection to the United States. FCPA applies to US businesses and any foreign corrupt practice with which they may be engaged in, whether it occurs physically in the US or not.

A company that commits a FCPA violation risks significant damage from a financial aspect and to their reputation. Increased FCPA penalties and persecution have spawned the renaissance of a strong corporate compliance program in order to maintain authority in the enhancement of international business options.

Recent corporate history is marked with the aftermath of a number of major violations of the Foreign Corrupt Practices Act. The two largest monetary settlements imposed on international companies’ are the $800 million for Siemens in 2008, resulted mostly from bribery to get contracts and foreign officials.1 The second greatest penalty was the $579 million settlement for KBR/Halliburton the following year, which stemmed from similar international bribery and bid-rigging.2

While Siemens and KBR/Halliburton faced the largest financial penalties for their FCPA violations, Nexus Technologies experienced a different punishment in 2010. The technology company (http://www.merrillbrink.com/information-technology-transl...) was forced to cease operations as a result of its guilty plea to conspiracy, relating to the bribery of Vietnamese public and financial officials for contracts between 1999 and 2005.

Despite the stark consequences of FCPA violations that these cases have highlighted, recent research has indicated that the anti-corruption policies of many companies still lack basic precautions. A recent survey by Deloitte, accompanied the new FCPA guidance showed that 32.9 percent of 1,569 respondents did not know or were unaware of whether their company had an anti-corruption compliance program in place.3

While the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) take a hard line on enforcing the FCPA, they also have put in place systems to help companies to make sure that they operate within the boundaries of the act.4  The DOJ places an importance on both pre-acquisition and post-acquisition due diligence to avoid potential complications. According to the recent Ernst & Young report suggests “that CFOs need to redouble their own efforts to set the tone: they need to be trained, to increase their awareness and to clearly demonstrate support for initiatives to manage fraud, bribery and corruption risks.” The DOJ and SEC have also issued extensive guidance on the establishing of compliance procedures within companies, including assigning a dedicated senior manager or managers to the task of running the compliance program, and ensuring that a “culture of compliance” can be established throughout the organization. The two organizations also detail how companies must dedicate “sufficient resources” to allow the compliance programs to be effectively implemented.

Companies can also take their own steps to ensuring compliance with the FCPA by partnering with a professional language service provider (http://www.merrillbrink.com/language-services.htm) able to provide comprehensive translations of legislative, judicial and financial language. The best defenses against FCPA violations are through knowledge and awareness, as well as a formidable compliance program designed to demonstrate an ethical approach throughout the entire organization.

References:

1 Wayne, Leslie. “Foreign Firms Most Affected by a U.S. Law Barring Bribes”, New York Times. September 3, 2012. http://www.nytimes.com/2012/09/04/business/global/bribery-settlements-under-us-law-are-mostly-with-foreign-countries.html?pagewanted=all&_r= (http://www.nytimes.com/2012/09/04/business/global/bribery...)

2 Gelsi, Steve. (February 11, 2009). KBR, Halliburton paying $579 million settlement. http://www.marketwatch.com/story/kbr-halliburton-pay-record-fine-nigeria

3 New FCPA Guidance from DOJ and SEC: How It May Impact Your Anti-
Corruption Compliance Program. Deloitte Development LLC. November 2012.

4 Growing Beyond: a place for integrity. Ernst & Young. 2012.

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