FCPA: What is the Role of a Board of Directors?

Aeschylus was the first of the three ancient Greek tragedians whose plays can still be read or performed; the others are Sophocles and Euripides. He is often described as the father of tragedy. In his life he fought for the Athenian democracy, most notably at the Battle of Marathon. When asked if he wanted to be remembered for his plays or his service to his country, he responded by having the following epithet inscribed on his burial site: “Beneath this stone lies Aeschylus, son of Euphorion, the Athenian, who perished in the wheat-bearing land of Gela; of his noble prowess the grove of Marathon can speak, and the long-haired Persian knows it well.” Sometimes it is the simple rather than the complex that we should focus on and for my money, the epithet of Aeschylus is one of the classic examples.

One of the ongoing topics for various Foreign Corrupt Practices Act (FCPA); UK Bribery Act or other anti-corruption and anti-bribery compliance conferences is what information does a Board of Directors want or need for oversight of a compliance program? However today I would like to step back and focus on the initial question of “What is the role of a Board of Directors?” In a recent preliminary draft of a White Paper entitled “Corporate Governance of Social Enterprises” (herein “the White Paper”) a group of European authors, Ann-Kristin Achleitner, Judith Mayer, Andreas Heinecke, Mirjam Schöing and Abigale Noble (collectively “the authors”), explored this most basic question and others including such topics as Board of Directors make-up and selection; Board of Directors meetings and management of the Board and its relationship with a company’s management.

A Board of Directors will probably have an Audit Committee or Compliance Committee. I would like to focus on the role of the entire Board of Directors, rather than a specialized subcommittee ...

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