{"title":"United States—Deconstructing the FCPA","authors":"","doi":"10.1093/oso/9780190232399.003.0001","DOIUrl":"https://doi.org/10.1093/oso/9780190232399.003.0001","url":null,"abstract":"In 1976, the Securities and Exchange Commission (SEC) issued its groundbreaking Report of the Securities and Exchange Commission on Questionable and Illegal Corporate Payments and Practices, which characterized the problem of corrupt and illegal corporate payments as “serious and widespread.” Enacted in 1977, the Foreign Corrupt Practices Act of 1977 (FCPA) prohibits corrupt payments of money or anything of value to foreign officials in order to obtain or retain business. The FCPA continues to serve as the world’s only true anti-bribery touchstone against which subsequent enactments can be compared textually. Adherence to the directives of the FCPA continues as one of the most prominent issues in corporate compliance. The consequences of a DOJ investigation for an organization can be substantial and attention-diverting, a settlement can be costly, and an indictment can be crippling.","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134312713","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Corporate Monitors and the Monitorship Process","authors":"Andrew S. Boutros","doi":"10.1093/OSO/9780190232399.003.0024","DOIUrl":"https://doi.org/10.1093/OSO/9780190232399.003.0024","url":null,"abstract":"The prospect of a Foreign Corrupt Practices Act monitor is an unpleasant one for a company that just emerged from what likely was a long, expensive, and invasive investigation and wants to get back to business. A compliance monitor brings even more cost, effort, and scrutiny through evaluating the company’s anti-corruption compliance program, conducting interviews, performing testing, and making recommendations. Although rarely welcomed by companies, a well-executed monitorship can be a helpful endeavor that results in a stronger company. This chapter discusses the use of corporate compliance monitors as a condition to resolving corporate FCPA enforcement actions, common aspects of FCPA monitorships, and best practices for achieving a successful FCPA monitorship.","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116228493","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Tunisia","authors":"Andrew S. Boutros","doi":"10.1093/oso/9780190232399.003.0015","DOIUrl":"https://doi.org/10.1093/oso/9780190232399.003.0015","url":null,"abstract":"At the forefront of the “Jasmine Revolution” in 2011, Tunisia ousted an autocrat and expressly provided for the prevention of corruption in its new constitution. While its stated commitment to anti-corruption in the aftermath of the Arab Spring is laudatory, Tunisia is still inching incrementally toward laws and policies that uphold transparency and accountability. This chapter examines Tunisia’s legal and regulatory anti-corruption regime, including but not limited to criminal and civil codes and treaty obligations, under its new constitution. It concludes that while Article 10 of the Tunisian Constitution and the legal reforms that have followed are a strong declaration of intent to change course, “[h]istory will judge if they fulfill their promise.”","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"142 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129010419","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Mexico","authors":"Andrew S. Boutros","doi":"10.1093/oso/9780190232399.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780190232399.003.0012","url":null,"abstract":"There have been significant changes to Mexican law recently that have provided prosecutors updated and enhanced tools to combat corruption. In May 2015, the Mexican Congress and the states approved a constitutional amendment that created the National Anti-Corruption System, which was put into full force and effect in 2017. This supplemented and broadened the already existing anti-corruption laws in Mexico’s public procurement process. Now individuals and legal entities can be criminally liable for bribery of public officials in Mexico. In November 2014, Mexico City passed modifications to the criminal code making bribery an offense that can be committed by both individuals and legal entities and created an innovative approach to calculating penalties against companies. However, even though laws have changed, much remains to be done. The OECD noted that Mexico has fully implemented very few of the recommendations that it has made to eradicate corruption. Mexico still had no prosecutions or convictions for foreign bribery. Corruption is still common in Mexico, with the widespread use of “gestores” or intermediaries to navigate the bureaucracies responsible for issuing licenses and permits, shell companies owned by family members of government officials seeking a bribe, fictitious service providers, and improper gifting and excessive hospitality to employees of state-owned entities. With the new Lopez Obrador Administration’s anti-corruption plan, further changes are anticipated in public procurement by the creation of a central mechanism to manage and monitor public contracts to achieve greater transparency. The new administration has also committed to creating an autonomous Special Prosecutor’s Office to independently investigate and prosecute corruption cases and to implement additional restrictions on entertainment and gifts provided to public officials.","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121357567","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Cuba","authors":"Andrew S. Boutros","doi":"10.1093/oso/9780190232399.003.0006","DOIUrl":"https://doi.org/10.1093/oso/9780190232399.003.0006","url":null,"abstract":"Cuba has long been saddled with a culture of corruption. A lengthy history of colonialism and a state-controlled economy have produced a country with a weak economy, product shortages, low wages, and an understanding that taking a little for oneself is not only acceptable but, in many cases, necessary to get by. Scarcity and rationing of resources have led to an environment where obtaining goods and services requires grease payments, workers steal items from their employers to sell on the black market, and employees are often absent so that they can earn extra money from side jobs. At the same time, poorly paid bureaucrats, business managers, and even high-level government officials supplement their income through illicit use of their positions. The centralization of power, strict government control of the media, and lax compliance oversight have led to a lack of transparency and accountability. While high-level corruption on a large scale is less common in Cuba than other parts of Latin America, lower-level corruption is widespread. Over the years, the ruling Castro regime has taken a number of approaches to curbing corruption that have led to laws and institutions aimed at eliminating corrupt conduct, fraud, waste, abuse, and cronyism. However, there is little protection for whistle-blowers in Cuba. Accordingly, a vital tool in the effort to detect and prevent bribery, the misuse of government funds, fraud, and other types of corruption is largely missing.","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126314464","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Brazil","authors":"Andrew S. Boutros","doi":"10.1093/oso/9780190232399.003.0003","DOIUrl":"https://doi.org/10.1093/oso/9780190232399.003.0003","url":null,"abstract":"In recent years, Brazil has become a major player in anti-corruption investigations and enforcement worldwide. The adoption of the Clean Company Act in 2013 signified a new chapter in corporate liability, promoting compliance as well as providing new enforcement tools for prosecutors faced with issues both domestically and abroad. The Lava Jato, or Car Wash, investigation, which began in 2014 and has now gone through numerous phases, in the process implicating many companies, Brazilian and foreign, as well as pubic officials, is ongoing. As the result of Lava Jato, Brazil has vaulted into the forefront of international cooperation efforts in the anti-corruption field. This chapter explains these developments, and endeavors to also explain the details of the Brazilian legislation, which while spurred by the OECD Antibribery Convention, is distinct in its scope and approach, as well as the allocation of enforcement authority and responsibilities among different government agencies and the Brazilian authorities’ compliance expectations. The use of negotiated resolutions, including plea bargains, and collaboration agreements, has dramatically increased, but issues remain as to whether all enforcement authorities will give effect to these agreements.","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121211377","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Department of Justice’s New Revised FCPA Corporate Enforcement Policy","authors":"Andrew S. Boutros","doi":"10.1093/OSO/9780190232399.003.0028","DOIUrl":"https://doi.org/10.1093/OSO/9780190232399.003.0028","url":null,"abstract":"On November 29, 2017, Deputy Attorney General (DAG) Rod Rosenstein announced a new and significant shift in the Department of Justice’s Enforcement Policy for the FCPA. The Policy is designed to provide more certainty to companies regarding the benefits of cooperating with federal enforcement officials investigating corrupt business activities abroad. It is critical for companies to understand this policy shift, which can be beneficial to proactive companies. This chapter discusses this policy shift (as well as the DAG’s subsequent clarification of the policy in his “Yates Memo” speech of November 29, 2018), including the definition of what constitutes voluntary disclosure, full cooperation, and remediation, all of which are required for a company to receive the benefits of the policy.","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116066267","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"South Africa","authors":"Andrew S. Boutros","doi":"10.1093/oso/9780190232399.003.0014","DOIUrl":"https://doi.org/10.1093/oso/9780190232399.003.0014","url":null,"abstract":"The South African legal regime recognizes the role of international law and treaties, and much of South Africa’s anti-corruption legislation has been enacted to give effect to various international conventions and treaties. Accordingly, this chapter will discuss and detail the material developments in respect of bribery and anti-corruption legislation and further consider the interplay between applicable South African legislation and international conventions. This chapter will further, inter alia, cover legal issues relating to certain presumptions applicable to statutory offenses, the nature of what is referred to as “facilitation payments,” how “gifts, gratuities and hospitality” are dealt with in terms of applicable legislation, whistle-blower protection, international cooperation and extradition agreements, and the South African corporate practice regarding the foregoing. Where one is in breach of certain anti-corruption legislation, it should be noted that one may inadvertently also be in breach of South African anti-trust legislation, and these issues will be further considered and detailed herein.","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132829174","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"France","authors":"Andrew S. Boutros","doi":"10.1093/oso/9780190232399.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780190232399.003.0007","url":null,"abstract":"Since the introduction of the offense of bribery of foreign public officials under French law in 2000, France has made undeniable progress in combating corruption. Numerous reforms have then been adopted (expansion of the scope of criminal prosecution, facilitation of the seizure and confiscation of assets in criminal matters, increasing of possible penalties, creation of the National Financial Prosecutor, . . .). French law criminalizes active and passive bribery, private and public bribery, domestic and foreign/international bribery as well as influence peddling. Nevertheless, the OECD was particularly critical of France over the last years. The French legislature recently took such criticism into account and strove to make further progress in preventing, detecting, and punishing corruption in order to reach the highest international standards. Law No. 2016-1691, known as “Sapin II law,” recently enhanced the French anti-bribery system by introducing a new duty for certain companies and their executives to prevent bribery and influence peddling by implementing a compliance program to prevent and detect such offenses. Sapin II law therefore testifies to France’s determination to effectively fight corruption.","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"24 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124900949","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Global Developments in, and Evolution of, Third-Party Due Diligence","authors":"Andrew S. Boutros","doi":"10.1093/OSO/9780190232399.003.0021","DOIUrl":"https://doi.org/10.1093/OSO/9780190232399.003.0021","url":null,"abstract":"Third-party due diligence is a critical element in any anti-bribery compliance program. This chapter discusses the risks posed by the use of third-party agents and intermediaries and how those risks can be assessed, documented, and mitigated. It reviews best practices and procedures covering the full span of third-party interaction, from the initial selection through any potential termination. It includes an in-depth presentation of techniques and procedures for internal and external review, in varying intensity to suit the range of possible risk. With an awareness of common pitfalls and an attention to cost concerns, this chapter provides a thorough and practical overview for any company seeking to meet its ethical and legal obligations under transnational anti-bribery law.","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116771510","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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