Foreign Corrupt Practices Act in the Middle East...
Transcript of Foreign Corrupt Practices Act in the Middle East...
Foreign Corrupt Practices Act
in the Middle East 2012 Compliance Strategies Given the Region's Unique Cultural and Governmental Intricacies
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WEDNESDAY, DECEMBER 5, 2012
Presenting a live 90-minute webinar with interactive Q&A
Kevin T. Connor, Partner, Squire Sanders, Riyadh, Saudi Arabia
Gabriel Colwell, Senior Associate, Squire Sanders, Los Angeles
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37 Offices in 18 Countries
Foreign Corrupt
Practices Act in the
Middle East
Gabriel Colwell
5 December 2012
Compliance Strategies
5
What is the FCPA?
• An anti-bribery statute
• A public company accounting statute
• Adopted in 1977 to prohibit bribery of foreign government
officials
• Enforceable by the US Department of Justice (DOJ) and the
Securities and Exchange Commission (SEC)
• Recent FCPA resource guide issued by DOJ/SEC
6
FCPA Overview
• The FCPA applies to:
Any U.S. company and its foreign affiliates;
Any foreign company issuing securities registered with the SEC
• The FCPA has two prongs:
The anti-bribery provisions - prohibit giving or offering money, gifts
or “anything of value” to a foreign government official to obtain or
retain business; and
The accounting provisions - require subject companies to maintain
adequate “books and records” and “internal controls” over financial
transactions and disposition of Assets
• The FCPA prohibits corrupt payments through
intermediaries
7
The FCPA – Anti-Bribery Provisions
• Who is a “Foreign Official?”
A “Foreign Official” is any non-U.S. person acting in an official
capacity for or on behalf of a non-U.S. government agency,
department, instrumentality, or public international organization
A Foreign Official can be:
– Any officer or employee of a foreign government, or any
department, or agency (including Customs Officials)
– Officers or employees of state-owned businesses
– Officials of public international organizations (World Bank,
WHO, International Red Cross)
– Honorary officials whose duties are merely ceremonial, if
they have actual influence in the award of business
8
The FCPA – Accounting Provisions
• Books and Records
Issuers must maintain books and records in reasonable detail such
that the books and records accurately and fairly reflect all the issuer’s
transactions and disposition of assets.
Foreign subsidiaries which are majority or wholly owned by the issuer
are subject to these provisions.
Violations do not require any illegal bribe.
Materiality is not an issue.
o However, disclosure of possible illegal acts may be material.
Issuers may be held strictly liable for the actions of controlled
subsidiaries of foreign affiliates for violations of the accounting and
record-keeping provisions, regardless of any knowledge or suspicion
of wrongful conduct by the issuer
9
The FCPA - Exceptions/Defenses
• The payment to the Foreign Official was lawful under the written
laws or regulations of the foreign country at issue.
• The payment was a reasonable and bona fide expenditure
related to:
The promotion, demonstration or explanation of products or services
The execution or performance of a contract with a foreign government
or agency
• Facilitation (“Grease”) payments:
Payments to expedite or secure performance of a routine
governmental action by a Foreign Official
May violate bribery laws in a foreign jurisdiction and thus present a
risk to the payor
10
The FCPA – Penalties
• Anti-Bribery Penalties:
Corporate.
– Criminal - $2 million per violation or twice the gain or loss
– Civil - $16,000 per violation
Individual.
– Criminal - $100,000 per violation or twice the gain or loss
and/or 5 years in prison per violation
– Civil - $16,000 per violation
– If a fine is imposed on a corporate officer, director,
employee, agent or stockholder, the corporate entity may
not pay, directly or indirectly, that individual’s fine.
11
The FCPA – Penalties
• Books & Records and Internal Control Penalties:
Corporate.
– Criminal - $25 million per violation or twice the gain or loss
– Civil - up to $500,000 per violation or the gross amount of
gain, disgorgement, fines, and administrative proceedings
Individual.
– Criminal - $5 million per violation or twice the gain or loss
and/or 20 years in prison
– Civil – up to $100,000 per violation or the gross amount of
gain, disgorgement, fines, and administrative proceedings
• Other Consequences:
– Debarment
– Monitorship
– Damage to reputation
– Drop in share value
– Third party civil suits against the company, officers and
directors
12
US Legislative and
Regulatory Developments
• Nov 2012 DOJ/SEC FCPA Guidance Issued
Little new, but clarifies and consolidates existing guidance
– Gifts and T&E
– Accounting Provisions
– Successor Liability in M&A
– Third Party Agents
– Compliance Programs
Provides Useful Hypothetical Examples
Emphasizes Risk Based Approach
13
Middle East FCPA Risks
Third-party
agents
High-risk
industries
High risk
countries
Business with
governments
14
High Risk Countries –
Corruption Perception Index
1.0 = Most Corrupt (Somalia/N. Korea)
9.5 = Least Corrupt (New Zealand)
*Transparency International Corruption Perception Index 2011
15
Transparency International
CPI Middle East Ratings
TI Corruption Perception Index Rank (out of 183)*
1. Qatar – 22 10. Morocco - 80
2. UAE – 28 11. Egypt – 112
3. Israel – 36 12. Algeria - 112
4. Bahrain – 46 13. Iran – 120
5. Oman - 50 14. Syria – 129
6. Kuwait - 54 15. Lebanon – 134
7. Jordan - 56 16. Yemen – 164
8. Saudi Arabia - 57 17. Libya – 168
9. Tunisia - 73 18. Iraq - 175
*Transparency International Corruption Perception Index 2011
16
2011 Global Integrity Report
Critical of Middle East
• Tracks global trends in 36 countries
• Middle East reform lagging behind the rest of the world
• Steady deterioration in Egypt, Morocco, the West Bank and
Yemen
• Only Israel and UAE scored
higher than “Very Weak”
• Average ME score 51/100;
global average 66/100
* May 2011 Global Integrity Report
17
Enforcement Actions by Industry
18
Overview of FCPA Enforcement
• FCPA prosecutions continue at a record setting pace:
2008: 33 enforcement actions resolved; first year of large fines
($890 million in fines)
2009: 40 enforcement actions resolved; individuals targeted
($644 million in fines)
2010: 48 enforcement actions resolved; non-US companies and
industry sweeps ($1.8 billion in fines)
2011: 15 corporate enforcement actions resolved ($508 million in
fines); 39 individuals indicted, tried or sentenced; Congressional
hearings
2012 YTD: 10 corporate enforcement actions resolved ($211 million in
fines), multiple individual actions;
Nov 2012 DOJ/SEC Guidance Issued
– Assistant Attorney General Lanny Breuer comments “As a result
of our efforts over the past 3 ½ years, robust FCPA enforcement
has become part of the fabric of the Justice Department… there
is no turning back”
19
FCPA Top Ten
Company (Country) Industry Fine Yr
1. Siemens (Germany) Telecom $1.6 billion* 2008
2. KBR/Halliburton (USA) Oil & Gas $579 million 2009
3. BAE (UK) Aerospace &
Defence
$400 million 2010
4. Snamprogetti Netherlands/ENI (Holland/Italy) Oil & Gas $365 million 2010
5. Technip (France) Oil & Gas $338 million 2010
6. JGC Corp (Japan) Oil & Gas $218.8 million 2011
7. Daimler (Germany) Automotive $185 million 2011
8. Alcatel-Lucent (France) Telecom $137 million 2010
9 Magyar Telekom/Deutsche Telecom
(Hungary/Germany)
Telecom $95 million 2011
10
.
Panalpina (Switzerland) Logistics $81.8 million 2010
* ($800 million US + $800 million Germany)
20
Middle East Related FCPA Enforcement
Cases
Health South (2004)
Micrus (2005)
Statoil (2006)
Salam (2006)
Oil-for-Food 30+ cases
(2007-2010)
Turk Deltapine (2007)
York International (2007)
Siemens (2008)
Control Components (2009)
United Industrial (2009)
Latin Node (2009)
BAE Systems (2010)
Daimler (2010)
Pride International (2010)
Comverse Technology (2011)
Tyco International Ltd. (2012)
*Alcoa, Inc.
37 Offices in 18 Countries
Foreign Corrupt
Practices Act in the
Middle East
2012
Kevin T. Connor
December 5, 2012
22
Defining the Region
• Geography
What is the “Middle East”
• Culture
Nepotism and corruption
• Politics (the Arab Spring)
Has there been any effect?
• History
• Country specific
Each country should be reviewed independently
23
• Complexity of issues and interests
• Different legal systems – Complex Civil Service
• Shari’a Law – Forbids Corruption
• Change as a constant
• Transparency
• Systemic risk
Corruption is deeply rooted and endemic
Understanding the Dynamics in the
Middle East
24
Creating a Risk Matrix for FCPA
Compliance
• Due Diligence and the importance of being
earnest
Due diligence mechanics – checklists, research, site
visits and interviews
Detailed written records
• Market allure and commercial pressure
Balancing competing interests and factors
• Expectation Management
Hurry up and wait
• Building Relationships based on trust
Communication and education
25
• Political risk
Local and national
• Cultural risk
Do you understand your partners ?
• Communication Risk
• Creation and distribution of electronically stored information
• Data Protection
• Third Party Risk
Evaluate and assess the risks
Identify FCPA Risk Factors
26
• Nature of Investment/ Market Activity
Commercial Agency
Joint Venture
Procurement
• Licensing and Company Formation
Facilitation Payments
• Third Party Agent Red Flags
Family or business relationships with foreign
government official or royal family member
Is specified or recommended by a government official
Is owned by a government entity or refuses to disclose
owners or partners
Identify FCPA Risk Factors
27
Refuses to comply with the company’s code of ethics
and business conduct or to provide FCPA certifications
Advanced payments or unusually high commission
Requests to pay a non-related person/entity or to a
country with weak banking transparency
Appears unqualified or understaffed to perform the
contracted activities
Requests that his identity be kept hidden
Requests that he be paid in cash or up front
Requests that the company create false documents
Seeks reimbursement for unusually high, ill-defined or
undocumented expenses
Is indifferent to local laws and regulations
Reputation, reputation, reputation
Identify FCPA Risk Factors
28
• Standard Downfalls
“Head in the sand” attitude toward agents,
consultants and partners
Failure to require third parties to comply
with anti-bribery requirements
Lack of adequate training of foreign nationals
in charge of operations
Failure to establish adequate transparency
of financial and operational reporting
Lack of management and internal audit
oversight/monitoring
Compliance program is not a living, breathing
program but just a paper tiger
Identify FCPA Risk Factors
29
• Pre investment phase
Responsible FCPA risk analysis
Assign a likelihood to the risk
Cost benefit review
• Post investment phase
Risk management plan
Corporate governance / compliance
Record Keeping
• On going monitoring
A Suggested Approach
30
• Islamic Law
Prohibition against corruption deeply rooted in the
Quran
• Anti-Bribery Legislation of Saudi Arabia
1930s Abuse of Position
Combating Bribery Law (“CBL”) Royal Decree No. M/36
(1992)
Civil Service Law, Royal Decree No. M/49 (1977)
Officer Service in the Armed Forces
Shoura Conncil Rules
National Anti-Corruption Commission (2011)
Local Anti-Bribery Laws, Saudi Arabia
31
• Key Provisions of CBL
Definition of Bribery – Every Public Employee is
prohibited from accepting, receiving or soliciting a bribe
for himself or a third party to (i) perform a duty, (ii) cease
performing a duty, (iii) neglect a duty, (iv) not performing
a duty or (v) to use real of alleged authority. A bribe is
any benefit or privilege, promise or gift whether material
or not.
Definition of Public Employee – Anyone who works for
the government, any governmental institutions or
government-owned entity
Penalties
Enforcement
Local Anti-Bribery Laws, Saudi Arabia
32
• Investigation Authority
Corruption investigation department
Criminal investigation department
Various control authorities.
• Gift Giving
Internal Controls
Gratuities
Facilitation Payments
Entertainment
Receptions, sponsorship of events
Lodging, and transpiration
• E-Government
• Public Procurement
Local Anti-Bribery Laws, Saudi Arabia
33
• Overview
• UAE Federal Penal Code
Definition of Bribery
• UAE Federal Money Laundering Law
• Dubai Government Human Resources
Management Law
• Gift Giving
Value of Gifts/Hospitality
Frequency
Local Anti-Bribery Laws, Untied Arab
Emirates
34
• Gift Giving, continued
Intention
Relevance to Receipient/Offerer
• Practical Guidelines
Marketing
Conduct of Duties
Favorable Treatment
Local Anti-Bribery Laws, Untied Arab
Emirates
35
Worldwide Locations
• Cincinnati
• Cleveland
• Columbus
• Houston
• Los Angeles
• Miami
• New York
• Northern Virginia
• Palo Alto
• Phoenix
• San Francisco
• Tampa
• Washington DC
• West Palm Beach
• Bogotá+
• Buenos Aires+
• Caracas+
• La Paz+
• Lima+
• Panamá+
• Rio de Janeiro
• Santiago+
• Santo Domingo
• Beirut+
• Berlin
• Birmingham
• Bratislava
• Brussels
• Bucharest+
• Budapest
• Frankfurt
• Kyiv
• Leeds
• London
• Madrid
• Manchester
• Moscow
• Paris
• Prague
• Riyadh
• Warsaw
• Beijing
• Hong Kong
• Perth
• Seoul
• Shanghai
• Singapore
• Sydney
• Tokyo
North America Latin America Europe & Middle East Asia Pacific
+ Independent Network Firm
37 Offices in 18 Countries
Q & A
Thank You
Gabriel Colwell
Kevin T. Connor