FCPA Risk Assessments: New Input into Current Best Practices

Auszug aus einem aktuellen und seitens NIETZER&HÄUSLER nach Prüfung für relevant gehaltenen Artikel im Bereich Foreign Corrupt Practices Act und Compliance. Vieles davon ist auch hilfreich und verwendbar für die Implementierung entsprechender deutscher Standards bzw. Regeln, die deutsche Firmen international verwenden sollten.

We believe that Risk Assessment is a tool and is one with which a company should begin to craft its Foreign Corrupt Practices (FCPA) or UK Bribery Act compliance program. The simple reason is straightforward; one cannot define, plan for, or design an effective compliance program to prevent bribery and corruption unless you can measure the risks you face. Both the both the Principles of Federal Prosecution of Business Organization (US Sentencing Guidelines) and its section on corporate compliance programs and the UK Bribery Act’s Consultative Guidance list Risk Assessment as the initial step in creating an effective anti-corruption and anti-bribery program. So far, in 2011 the US Department of Justice (DOJ) has concluded three FCPA enforcement actions which specify some factors which a company should review when making a Risk Assessment.

The three enforcement actions, involving the companies Alcatel-Lucent, Maxwell Technologies and Tyson Foods all had common areas that the DOJ indicated were FCPA compliance risk areas which should be evaluated for a minimum best practices FCPA compliance program. In both Alcatel-Lucent and Maxwell Technologies, the Deferred Prosecution Agreements (DPAs) listed the seven following areas of risk to be assessed.

1. Geography-where does your Company do business.

2. Interaction with types and levels of Governments.

3. Industrial Sector of Operations.

4. Involvement with Joint Ventures.

5. Licenses and Permits in Operations.

6. Degree of Government Oversight.

7. Volume and Importance of Goods and Personnel Going Through Customs and Immigration.

In the Tyson Foods DPA, this list was reduced to the following (1) Geography, (2) Interaction with Governments, and (3) Industrial Sector of Operations. It would seem that the DOJ did not believe that Tyson Foods had the same compliance risks as Alcatel-Lucent and Maxwell Technologies because (a) there limited internal sales market and (b) the fact it only has 6 food processing plants outside the United States.

These factors provide guidance into some of the key areas that the DOJ apparently believes can put a company at higher FCPA risk. These factors supplement those listed in the UK Bribery, Consultative Guidance which states, “Risk Assessment – The commercial organization regularly and comprehensively assesses the nature and extent of the risks relating to bribery to which it is exposed.” The Guidance points towards several key ris…