Rio Tinto, Daimler AG, Nexus Technologies, and others have managed to make their way into the headlines this past week, and they have all managed to do so for the same reason: conviction of bribery. Bribery and other FCPA infractions have been longstanding issues facing a number of companies due to the differences in laws and ethics around the world.
Each country has a different opinion on administering and accepting bribes for the gain of business- or the individual. In the article “New Global Standard of Good Corporate Citizenship” on the Corporate Compliance Insights website, the OECD Good Practice Guidance for Anti-Bribery Compliance Programs by Kaplan & Walker “seems destined to become the most significant set of compliance and ethics standards yet promulgated- at least for global companies.” The steps addressed by the OECD regarding good practices provide great points for review when it comes to developing compliance and ethics policies for your company.
Standards for Good Corporate Citizenship
The OECD states that:
“Effective internal controls, ethics, and compliance programs or measures for preventing and detecting foreign bribery should be developed on the basis of a risk assessment addressing the individual circumstances of a company, in particular the foreign bribery risks facing the company Such circumstances and risks should be regularly monitored, re-assessed, and adapted as necessary to ensure the continued effectiveness of the company’s internal controls, ethics, and compliance program or measures.”
The OECD recommends paying close attention to these 12 principles of good practice guidance and implementing them into your company:
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1. Tone at the Top- Strong, visible support and commitment from senior management to the company’s internal controls, ethics and compliance programs or measures for preventing and detecting foreign bribery.
2. Anti-Bribery Policy- A clearly articulated and visible corporate policy prohibiting foreign bribery.
3. Compliance is the Responsibility of Everyone–Compliance with anti-bribery policies and related internal controls, ethics, and compliance programs or measures is the duty of individuals at all levels of the company.
4. Senior Officer Duties- The oversight of ethics and compliance programs regarding foreign bribery- including the authority to report matters directly to independent monitoring bodies such as internal audit committees of boards of directors or of supervisory boards, is the duty of one or more senior corporate officers, with an adequate level of autonomy from management, resources and authority.
5. Areas of Bribery- Ethics and compliance programs designed to prevent and detect foreign bribery are applicable to all directors, officers, and employees. They are also applicable to all entities over which a company has effective control, including subsidiaries. These areas of bribery include: gifts, entertainment and expenses, customer travel, political contributions, charitable donations and sponsorships, facilitation payments, solicitation and extortion.
6. The Power of Many- Ethics and compliance programs designed to prevent and detect foreign bribery are applicable to all employees and other intermediaries- consultants, representatives, distributors, contractors and suppliers, consortia, and JV partners regarding the following elements:
i) Properly documented risk-based due diligence related to the hiring, as well as the appropriate and regular oversight of business partners.
ii) Informing business partners of the company’s commitment to abiding to laws on the prohibitions against foreign bribery and of the company’s ethics and compliance program.
iii) Seeking a reciprocal commitment from business partners.
7. Accurate Accounting Documentation- Develop a system of financial and accounting procedures- including a system of internal controls, designed to ensure the maintenance of fair and accurate books, records, and accounts, to ensure that they cannot be used for the purpose of foreign bribery or hiding such bribery;
8. Communicate and Train- Design a program to ensure periodic communication and documented training for those at all levels of the company pertaining to the company’s ethics and compliance program, as well as for subsidiaries- if applicable.
9. Reward and Support- Develop measures to encourage and provide positive support for the observance of ethics and compliance programs at all levels of the company.
10. Establish Consequences and Disciplinary Procedures- Address appropriate disciplinary actions for violations, at all levels of the company, of laws against foreign bribery and the company’s ethics and compliance program.
11. Handling Internal Complaints and Investigations- Develop effective measures for handling investigations and allegations made through reporting systems:
i) Provide guidance and advice to directors, officers, employees and other business partners, on complying with the company’s ethics and compliance program- including what to do when they need urgent advice on difficult situations in foreign jurisdictions.
ii) Internal and confidential reporting by and protection of directors, officers, employees, and other business partners not willing to violate professional standards or ethics under instructions or pressure from hierarchical superiors. As well as protection for directors, officers, employees, and other business partners willing to report breaches of the law, professional standards or ethics occurring within the company.
iii) Undertaking appropriate action in response to such reports.
12. Regularly Update and Review Policies- Periodic reviews of the ethics and compliance programs to evaluate and improve their effectiveness in preventing and detecting foreign bribery, taking into account relevant developments in the field and evolving changes in international and industry standards.