This document summarizes anti-corruption laws and compliance best practices for companies operating in Ukraine. It provides an overview of the key provisions and requirements of the US Foreign Corrupt Practices Act (FCPA), UK Bribery Act, and Ukrainian anti-corruption law. It discusses who can be considered a public official, what constitutes a bribe, exceptions, penalties, enforcement authorities, and the importance of compliance programs. It emphasizes the global reach and extraterritorial application of the FCPA and UK Bribery Act.
This document summarizes key aspects of the US Foreign Corrupt Practices Act (FCPA). It describes the FCPA's anti-bribery and accounting provisions, what constitutes a foreign official, exceptions for facilitating payments and promotional expenditures, due diligence requirements, and penalties for noncompliance. It also provides examples of FCPA enforcement actions and analyzes several hypothetical situations involving third parties, gifts and entertainment, and mergers and acquisitions for potential FCPA issues.
In this age of global business operations and opportunities, it is a business imperative to have an effective FCPA Compliance Program. In this webinar co-hosted with Paul Murdock of MCG Consulting we explore and discuss Foreign Corrupt Practices Act compliance and actions to achieve a FCPA Compliance Program.
For a full video of the recording visit: https://mco.mycomplianceoffice.com/mco-webinar/foreign-corrupt-practices-act-fcpa-compliance-webinar
This document summarizes a presentation on managing international risks and conducting international corporate investigations. It discusses the various risks companies face in international business like market, regulatory, socio-political, economic, operational, and management risks. It also outlines when and why companies conduct internal investigations, both with and without government involvement. Key points covered include establishing an ethics policy and compliance programs, triggers for investigations, principles of prosecution for corporations, potential consequences of criminal liability, conducting investigations, importance of remedial measures, disclosure obligations, and risks of disclosure versus non-disclosure.
This document provides an overview of the Foreign Corrupt Practices Act (FCPA) in 28 sections. It discusses who is covered by the FCPA, including issuers of securities, domestic concerns, subsidiaries, and foreign companies acting in the US. It outlines the FCPA's requirements regarding accurate record keeping and prohibitions on bribing foreign officials. It also reviews exceptions, penalties for violations, compliance best practices, and common pitfalls.
Details the provisions and implications of the Foreign Corrupt Practices Act (FCPA) geared toward sales people.
NOTE: Undergoing rewrite so examples more timely, specifically lessons from Siemens' FCPA problems.
The Federal Corrupt Practices Act (“FCPA”) prohibits a U.S. company or person from bribing foreign government officials to obtain a business advantage. Along with this seemingly simple restriction comes accounting and record keeping requirements with which companies must comply. The FCPA requires the implementation of a compliance program which addresses FCPA concerns and establishes an FCPA corporate policy. This webinar covers the basics of the FCPA, including an introduction to the regulators, both the SEC and DOJ, and recent communications to the public regarding the FCPA from these regulatory bodies. The standards for a compliance program review is analyzed, including what makes a program current and effective as well as how often the program requires review. The role of a compliance coordinator is discussed, as is record keeping, training, and retaliation. Finally, meals and entertainment, gifts, travel, charitable contributions, and hiring are all discussed with reference to recent government actions and legal decisions.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/foreign-corrupt-practices-act-compliance-2021/
This document summarizes key aspects of the US Foreign Corrupt Practices Act (FCPA). It describes the FCPA's anti-bribery and accounting provisions, what constitutes a foreign official, exceptions for facilitating payments and promotional expenditures, due diligence requirements, and penalties for noncompliance. It also provides examples of FCPA enforcement actions and analyzes several hypothetical situations involving third parties, gifts and entertainment, and mergers and acquisitions for potential FCPA issues.
In this age of global business operations and opportunities, it is a business imperative to have an effective FCPA Compliance Program. In this webinar co-hosted with Paul Murdock of MCG Consulting we explore and discuss Foreign Corrupt Practices Act compliance and actions to achieve a FCPA Compliance Program.
For a full video of the recording visit: https://mco.mycomplianceoffice.com/mco-webinar/foreign-corrupt-practices-act-fcpa-compliance-webinar
This document summarizes a presentation on managing international risks and conducting international corporate investigations. It discusses the various risks companies face in international business like market, regulatory, socio-political, economic, operational, and management risks. It also outlines when and why companies conduct internal investigations, both with and without government involvement. Key points covered include establishing an ethics policy and compliance programs, triggers for investigations, principles of prosecution for corporations, potential consequences of criminal liability, conducting investigations, importance of remedial measures, disclosure obligations, and risks of disclosure versus non-disclosure.
This document provides an overview of the Foreign Corrupt Practices Act (FCPA) in 28 sections. It discusses who is covered by the FCPA, including issuers of securities, domestic concerns, subsidiaries, and foreign companies acting in the US. It outlines the FCPA's requirements regarding accurate record keeping and prohibitions on bribing foreign officials. It also reviews exceptions, penalties for violations, compliance best practices, and common pitfalls.
Details the provisions and implications of the Foreign Corrupt Practices Act (FCPA) geared toward sales people.
NOTE: Undergoing rewrite so examples more timely, specifically lessons from Siemens' FCPA problems.
The Federal Corrupt Practices Act (“FCPA”) prohibits a U.S. company or person from bribing foreign government officials to obtain a business advantage. Along with this seemingly simple restriction comes accounting and record keeping requirements with which companies must comply. The FCPA requires the implementation of a compliance program which addresses FCPA concerns and establishes an FCPA corporate policy. This webinar covers the basics of the FCPA, including an introduction to the regulators, both the SEC and DOJ, and recent communications to the public regarding the FCPA from these regulatory bodies. The standards for a compliance program review is analyzed, including what makes a program current and effective as well as how often the program requires review. The role of a compliance coordinator is discussed, as is record keeping, training, and retaliation. Finally, meals and entertainment, gifts, travel, charitable contributions, and hiring are all discussed with reference to recent government actions and legal decisions.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/foreign-corrupt-practices-act-compliance-2021/
This document discusses international trade laws and regulations, including the Foreign Corrupt Practices Act (FCPA) and export controls. It summarizes the FCPA's anti-bribery and accounting provisions. It also outlines red flags for bribery, some safeguards companies can implement, and lists of restricted or sanctioned parties including the Denied Persons List and Entity List that companies must check against before engaging in international business transactions.
The document summarizes key aspects of the Foreign Corrupt Practices Act (FCPA), including anti-bribery provisions that prohibit corrupt payments to foreign officials to obtain or retain business. It discusses what constitutes a payment of value and a foreign official, as well as exceptions. Enforcement of the FCPA has increased in recent years. The document also outlines best practices for FCPA compliance programs and conducting due diligence on foreign business partners.
The United States Department of Justice and Securities and Exchange Commission have dramatically increased their efforts to prosecute companies under The Foreign Corrupt Practices Act (“FCPA”). If your company conducts business outside of the United States, it is imperative that you understand the FCPA. Criminal and civil penalties may result for those that violate the FCPA. Further, officers and directors can be prosecuted even if they were not directly involved in the act that constitutes a violation of the FCPA. Recent trends have also shown that no industry is immune; even companies in traditionally “low-risk” industries are subject to prosecution.
The Foreign Corrupt Practices Act (FCPA) of 1977 prohibits bribery of foreign officials and requires compliance and transparency in financial record keeping. It was enacted in response to corrupt practices by some U.S. companies. The FCPA is jointly enforced by the Department of Justice and Securities and Exchange Commission. It applies to any U.S. person or company and also foreign companies listed on U.S. stock exchanges. Violations of the FCPA can result in severe civil and criminal penalties for both companies and individuals.
Kegler Brown, in conjunction with NACM Great Lakes Region, presented its annual Legal Conference for Credit Professionals on October 16, 2014. The half-day seminar is central Ohio's premier legal conference providing compelling and timely topics that are imperative for credit managers.
This year's topics included handling corruption in international sales, recovering assets transferred by debtors, electronic commerce and a bankruptcy law update.
The document outlines the key elements of violations under the U.S. Foreign Corrupt Practices Act, including that there must be: 1) corrupt intent by an actor such as an individual or firm, 2) payment or offer of value, 3) to a foreign official or political candidate/party, 4) to obtain or retain business. It also discusses intermediaries, due diligence requirements to avoid liability, red flags of potential violations, and sanctions for violations including criminal fines and loss of ability to contract with the U.S. government.
The document discusses the UK Bribery Act 2010. The Act created new offenses of active bribery, passive bribery, and bribing a foreign public official. It also established a new corporate offense of failing to prevent bribery by employees or agents. If convicted, individuals can face up to 10 years imprisonment and unlimited fines, while companies face unlimited fines. The Act has extraterritorial application and the Ministry of Justice has provided guidance on adequate procedures to prevent bribery.
Lawyer in Vietnam Oliver Massmann Transfer Pricing in Mergers and Acquisitio...Dr. Oliver Massmann
The document discusses transfer pricing issues that arise in mergers and acquisitions (M&A) in Vietnam. Specifically, it notes that if the agreed transfer price in an acquisition is less than the book value of the seller's equity, the licensing authority may refuse to approve the acquisition. It also discusses unclear tax regulations regarding capital gains tax on offshore acquisitions. This lack of clarity creates uncertain financial obligations for investors and can impact deal timelines. The document recommends harmonizing interpretations of transfer pricing and clarifying regulatory frameworks on tax liabilities from M&A transactions in Vietnam.
Edward Craft. Julian Mathews Master Class in English Law Course part2. 07.06....Awara Direct Search
The document discusses the UK Bribery Act 2010, which created new bribery offenses and established a corporate offense of failing to prevent bribery. It outlines the Act's provisions, including creating offenses for actively and passively bribing individuals, bribing foreign officials, and failing to prevent bribery by employees. It also discusses guidance from the Ministry of Justice on complying with the Act through adequate procedures and a nine-step compliance plan. The presentation compares differences between the UK Bribery Act and the US Foreign Corrupt Practices Act.
Fcpa anti corruption due diligence - (pwc)Helen Cuts
The document discusses conducting anti-corruption due diligence when acquiring companies. It begins with an agenda that includes a primer on the Foreign Corrupt Practices Act (FCPA), trends in anti-corruption due diligence, the need for due diligence to avoid legal and business risks, scenarios of when due diligence has uncovered issues, and approaches to conducting due diligence. The document emphasizes the importance of anti-corruption due diligence when acquiring companies and describes regulatory expectations for implementing compliance programs at acquired entities. It provides examples of issues uncovered during due diligence and the consequences.
The UK Bribery Act 2010 introduces several new bribery offenses that expand the UK's jurisdiction over bribery. It prohibits bribery of foreign officials, private individuals, and failure by companies to prevent bribery. It covers both UK and non-UK companies that do business in the UK. Penalties are severe, including up to 10 years in prison and unlimited fines. Guidance on an "adequate procedures" defense for companies is forthcoming but compliance is critical to avoid prosecution under the Act's broad reach.
Luis Alcalde presented "Business Risk: Latin America + Cuba" on November 18-19 at the 2015 Great Lakes Region Credit Conference.
The presentation international trade in a legal context, foreign exchange risk and business opportunities regarding Latin America and Cuba.
De-Risking Web Seminar held on 9/26/16 by Stanley Foodman of Foodman CPAs & Advisors and Global Radar to discuss the impact of de-risking on financial institutions
The Foreign Corrupt Practices Act and the Pharmaceutical Industrydominiclai
The Foreign Corrupt Practices Act (FCPA) prohibits bribery of foreign officials and requires accurate record keeping. It is highly relevant for pharmaceutical companies because they conduct many international clinical trials and operate in countries with national healthcare systems. Enforcement of the FCPA has increased in recent years, with over $1.5 billion in fines in 2010. Companies can minimize risk by voluntarily disclosing issues, establishing rigorous compliance policies, and following OECD anti-bribery guidelines endorsed by 38 countries.
Raj Maruvada presented on reporting requirements for US residents with foreign financial assets and transactions. He discussed that US citizens, residents and those meeting the substantial presence test must report foreign source income, assets held abroad like bank accounts and investments, ownership in foreign businesses, as well as gifts and inheritances from foreign sources. Forms like the FBAR, Form 8938, Form 5471, Form 8865 and Form 3520 must be filed in certain situations to meet these reporting obligations. Noncompliance can result in penalties, so it is recommended that anyone with foreign financial interests consult a tax professional.
Kegler Brown global business attorneys Luis Alcalde and David Wilson presented " Exporting from the United States: Key Legal Considerations" at the 2014 Ohio Export Internship Program.
They discussed international trade in a legal context, international trading or transfers, due diligence, FCPA and why compliance is important.
The document discusses key elements of international trade compliance. It covers import compliance with US Customs and Border Protection, including import procedures, penalties, and intellectual property protections. Export compliance with agencies like the Bureau of Industry and Security is also examined, including export controls, license requirements, and penalties. Other trade regulations involving items like defense technologies and anti-boycott laws are reviewed. The presentation emphasizes the importance of having a compliance program, periodic reviews, training, and record keeping to avoid penalties from regulatory violations.
Export Compliance & Controls Training July 31 2009..............................Export Experts, LLC
A substantial introduction and overview of the system of regulations applicable to the import, export, 'deemed export', and handing of information in accordance with the Laws and Regulations of the United States Government.
The document provides instructions for completing a bribery training. It directs users to download a training file from a link, extract the downloaded file, and open the extracted training folder. It notes the training will take 45 minutes to complete and must be finished in one sitting, as incomplete sessions require using a printed workbook instead. Each training section must be completed before moving to the next, and a certificate must be printed and submitted to HR upon completing the short final test.
The document provides an overview of party funds and corruption in India. It begins by defining what a party is and what party funds are. It then discusses the origins of parties and how they require funds. It notes that in early groups/societies funds were not needed, but as groups grew larger funds became essential. It also states that as leadership formed at different levels (family, village, state), funds would come from those levels.
The document then addresses trends in party funds and corruption in India. It notes that businesses and government employees often contribute funds expecting favors in return. This leads to corruption as leaders prioritize personal gains over their party. It provides a case study of a Jharkhand Chief Minister who
This document is a handbook from the Ministry for Foreign Affairs of Finland on preventing corruption in international development cooperation. It provides an overview of approaches to integrating anti-corruption techniques across different levels and forms of development assistance. The handbook covers political dialogue, supporting anti-corruption projects, applying anti-corruption principles comprehensively, relevant legislation and agreements, and internal controls. It aims to make preventing corruption an integral part of development cooperation.
This document discusses international trade laws and regulations, including the Foreign Corrupt Practices Act (FCPA) and export controls. It summarizes the FCPA's anti-bribery and accounting provisions. It also outlines red flags for bribery, some safeguards companies can implement, and lists of restricted or sanctioned parties including the Denied Persons List and Entity List that companies must check against before engaging in international business transactions.
The document summarizes key aspects of the Foreign Corrupt Practices Act (FCPA), including anti-bribery provisions that prohibit corrupt payments to foreign officials to obtain or retain business. It discusses what constitutes a payment of value and a foreign official, as well as exceptions. Enforcement of the FCPA has increased in recent years. The document also outlines best practices for FCPA compliance programs and conducting due diligence on foreign business partners.
The United States Department of Justice and Securities and Exchange Commission have dramatically increased their efforts to prosecute companies under The Foreign Corrupt Practices Act (“FCPA”). If your company conducts business outside of the United States, it is imperative that you understand the FCPA. Criminal and civil penalties may result for those that violate the FCPA. Further, officers and directors can be prosecuted even if they were not directly involved in the act that constitutes a violation of the FCPA. Recent trends have also shown that no industry is immune; even companies in traditionally “low-risk” industries are subject to prosecution.
The Foreign Corrupt Practices Act (FCPA) of 1977 prohibits bribery of foreign officials and requires compliance and transparency in financial record keeping. It was enacted in response to corrupt practices by some U.S. companies. The FCPA is jointly enforced by the Department of Justice and Securities and Exchange Commission. It applies to any U.S. person or company and also foreign companies listed on U.S. stock exchanges. Violations of the FCPA can result in severe civil and criminal penalties for both companies and individuals.
Kegler Brown, in conjunction with NACM Great Lakes Region, presented its annual Legal Conference for Credit Professionals on October 16, 2014. The half-day seminar is central Ohio's premier legal conference providing compelling and timely topics that are imperative for credit managers.
This year's topics included handling corruption in international sales, recovering assets transferred by debtors, electronic commerce and a bankruptcy law update.
The document outlines the key elements of violations under the U.S. Foreign Corrupt Practices Act, including that there must be: 1) corrupt intent by an actor such as an individual or firm, 2) payment or offer of value, 3) to a foreign official or political candidate/party, 4) to obtain or retain business. It also discusses intermediaries, due diligence requirements to avoid liability, red flags of potential violations, and sanctions for violations including criminal fines and loss of ability to contract with the U.S. government.
The document discusses the UK Bribery Act 2010. The Act created new offenses of active bribery, passive bribery, and bribing a foreign public official. It also established a new corporate offense of failing to prevent bribery by employees or agents. If convicted, individuals can face up to 10 years imprisonment and unlimited fines, while companies face unlimited fines. The Act has extraterritorial application and the Ministry of Justice has provided guidance on adequate procedures to prevent bribery.
Lawyer in Vietnam Oliver Massmann Transfer Pricing in Mergers and Acquisitio...Dr. Oliver Massmann
The document discusses transfer pricing issues that arise in mergers and acquisitions (M&A) in Vietnam. Specifically, it notes that if the agreed transfer price in an acquisition is less than the book value of the seller's equity, the licensing authority may refuse to approve the acquisition. It also discusses unclear tax regulations regarding capital gains tax on offshore acquisitions. This lack of clarity creates uncertain financial obligations for investors and can impact deal timelines. The document recommends harmonizing interpretations of transfer pricing and clarifying regulatory frameworks on tax liabilities from M&A transactions in Vietnam.
Edward Craft. Julian Mathews Master Class in English Law Course part2. 07.06....Awara Direct Search
The document discusses the UK Bribery Act 2010, which created new bribery offenses and established a corporate offense of failing to prevent bribery. It outlines the Act's provisions, including creating offenses for actively and passively bribing individuals, bribing foreign officials, and failing to prevent bribery by employees. It also discusses guidance from the Ministry of Justice on complying with the Act through adequate procedures and a nine-step compliance plan. The presentation compares differences between the UK Bribery Act and the US Foreign Corrupt Practices Act.
Fcpa anti corruption due diligence - (pwc)Helen Cuts
The document discusses conducting anti-corruption due diligence when acquiring companies. It begins with an agenda that includes a primer on the Foreign Corrupt Practices Act (FCPA), trends in anti-corruption due diligence, the need for due diligence to avoid legal and business risks, scenarios of when due diligence has uncovered issues, and approaches to conducting due diligence. The document emphasizes the importance of anti-corruption due diligence when acquiring companies and describes regulatory expectations for implementing compliance programs at acquired entities. It provides examples of issues uncovered during due diligence and the consequences.
The UK Bribery Act 2010 introduces several new bribery offenses that expand the UK's jurisdiction over bribery. It prohibits bribery of foreign officials, private individuals, and failure by companies to prevent bribery. It covers both UK and non-UK companies that do business in the UK. Penalties are severe, including up to 10 years in prison and unlimited fines. Guidance on an "adequate procedures" defense for companies is forthcoming but compliance is critical to avoid prosecution under the Act's broad reach.
Luis Alcalde presented "Business Risk: Latin America + Cuba" on November 18-19 at the 2015 Great Lakes Region Credit Conference.
The presentation international trade in a legal context, foreign exchange risk and business opportunities regarding Latin America and Cuba.
De-Risking Web Seminar held on 9/26/16 by Stanley Foodman of Foodman CPAs & Advisors and Global Radar to discuss the impact of de-risking on financial institutions
The Foreign Corrupt Practices Act and the Pharmaceutical Industrydominiclai
The Foreign Corrupt Practices Act (FCPA) prohibits bribery of foreign officials and requires accurate record keeping. It is highly relevant for pharmaceutical companies because they conduct many international clinical trials and operate in countries with national healthcare systems. Enforcement of the FCPA has increased in recent years, with over $1.5 billion in fines in 2010. Companies can minimize risk by voluntarily disclosing issues, establishing rigorous compliance policies, and following OECD anti-bribery guidelines endorsed by 38 countries.
Raj Maruvada presented on reporting requirements for US residents with foreign financial assets and transactions. He discussed that US citizens, residents and those meeting the substantial presence test must report foreign source income, assets held abroad like bank accounts and investments, ownership in foreign businesses, as well as gifts and inheritances from foreign sources. Forms like the FBAR, Form 8938, Form 5471, Form 8865 and Form 3520 must be filed in certain situations to meet these reporting obligations. Noncompliance can result in penalties, so it is recommended that anyone with foreign financial interests consult a tax professional.
Kegler Brown global business attorneys Luis Alcalde and David Wilson presented " Exporting from the United States: Key Legal Considerations" at the 2014 Ohio Export Internship Program.
They discussed international trade in a legal context, international trading or transfers, due diligence, FCPA and why compliance is important.
The document discusses key elements of international trade compliance. It covers import compliance with US Customs and Border Protection, including import procedures, penalties, and intellectual property protections. Export compliance with agencies like the Bureau of Industry and Security is also examined, including export controls, license requirements, and penalties. Other trade regulations involving items like defense technologies and anti-boycott laws are reviewed. The presentation emphasizes the importance of having a compliance program, periodic reviews, training, and record keeping to avoid penalties from regulatory violations.
Export Compliance & Controls Training July 31 2009..............................Export Experts, LLC
A substantial introduction and overview of the system of regulations applicable to the import, export, 'deemed export', and handing of information in accordance with the Laws and Regulations of the United States Government.
The document provides instructions for completing a bribery training. It directs users to download a training file from a link, extract the downloaded file, and open the extracted training folder. It notes the training will take 45 minutes to complete and must be finished in one sitting, as incomplete sessions require using a printed workbook instead. Each training section must be completed before moving to the next, and a certificate must be printed and submitted to HR upon completing the short final test.
The document provides an overview of party funds and corruption in India. It begins by defining what a party is and what party funds are. It then discusses the origins of parties and how they require funds. It notes that in early groups/societies funds were not needed, but as groups grew larger funds became essential. It also states that as leadership formed at different levels (family, village, state), funds would come from those levels.
The document then addresses trends in party funds and corruption in India. It notes that businesses and government employees often contribute funds expecting favors in return. This leads to corruption as leaders prioritize personal gains over their party. It provides a case study of a Jharkhand Chief Minister who
This document is a handbook from the Ministry for Foreign Affairs of Finland on preventing corruption in international development cooperation. It provides an overview of approaches to integrating anti-corruption techniques across different levels and forms of development assistance. The handbook covers political dialogue, supporting anti-corruption projects, applying anti-corruption principles comprehensively, relevant legislation and agreements, and internal controls. It aims to make preventing corruption an integral part of development cooperation.
El documento contiene información sobre un proyecto escolar realizado por 4 alumnos del segundo curso del Liceo Max Salas Marchán sobre los aspectos estructurales de la colonia. Incluye el nombre de la institución educativa, departamento, proyecto y detalles de los integrantes como nombre, curso y fecha.
Transparency International's Business Integrity Toolkit provides a six-step process for companies to build an effective anti-corruption program: Commit, Assess, Plan, Act, Monitor, and Report. The document outlines each step and what is expected from businesses. It provides examples of commitment statements and anti-bribery policies. Tools from Transparency International are also presented that can help with risk assessments, training, monitoring, and reporting on anti-corruption programs.
On Tuesday, 23 September, MCRB hosted a half-day workshop on “Anti-Corruption Programmes” for Myanmar businesses in Yangon. The workshop, held in collaboration with Spectrum – a Yangon-based sustainable development knowledge network - was the first in a series of events to follow-up on the Transparency in Myanmar Enterprises (TiME) report and build business capacity in the area of anti-corruption and human rights.
The UK Bribery Act 2010 went into effect on July 1, 2011. It establishes four key bribery offenses and provides an "adequate procedures" defense for companies. To utilize this defense, companies must demonstrate they had six principles of anti-bribery procedures in place: 1) proportionate procedures, 2) top-level commitment, 3) risk assessment, 4) due diligence, 5) communication and training, and 6) monitoring and review. The presentation discusses each of these principles in detail and provides examples of how companies can implement anti-bribery programs addressing third-party risks, mergers and acquisitions, and other issues to comply with the new law. It also notes the option of
This document provides an overview of procurement anti-corruption and anti-fraud training. It discusses the increasing reports of corruption and fraud among South African businesses, with procurement fraud being one of the most commonly reported issues. The objectives of the training are to identify risks, red flags, and best practices to develop an effective anti-corruption strategy. Various typologies of procurement corruption and fraud are defined, including bribery, bid rigging, ghost companies, unjustified sole-sourcing, and overcharging. The phases of the procurement cycle that are most susceptible to these issues are also examined.
Fraud and Internal Controls: A Forensic Accountant's Perspective - Bill AcuffDecosimoCPAs
The document discusses fraud risks and provides examples of fraud cases. It discusses key steps to manage fraud risks including governance, risk assessment, prevention, detection, deterrence and response. It then summarizes several high-profile fraud cases including Rita Crundwell who embezzled $53 million from her small town as controller over 20 years through lack of segregation of duties and extravagant lifestyle. The document outlines common fraud schemes and techniques based on research from COSO and the ACFE. It discusses Donald Cressy's fraud triangle of perceived opportunity, incentive/pressure, and rationalization driving fraud. Finally, it provides charts on common financial statement fraud techniques and the distribution of fraud by category and median losses.
Best Practices to Achieve an Effective FCPA Compliance ProgramMyComplianceOffice
In this age of global business, it is imperative to have an effective FCPA compliance program. In this webinar co-hosted with Paul Murdock of MCG Consulting we touched on:
-The Foreign Corrupt Practices Act compliance
-How to build an effective FCPA Compliance program
-Learn how to prepare your program to 'protect' your company
To watch video recordings of this webinar visit; https://mco.mycomplianceoffice.com/mco-webinar/best-practices-to-achieve-an-effective-fcpa-compliance-program
Luis presented to Brazilian law firm Peixoto e Cury Advogados on April 12, 2012, in Sao Paulo, Brazil. Luis discussed the background of the Foreign Corrupt Practices Act, along with the rules, regulations and sanctions.
This webinar discusses compliance with the Foreign Corrupt Practices Act (FCPA). It provides an overview of the FCPA and recent enforcement actions, highlighting risks around payments to foreign officials, third parties, gifts and travel. It also covers accounting requirements, individual liability, cooperation incentives, whistleblower protections and penalties for violations. The webinar is part of a series on corporate compliance topics.
The document provides an overview of recent changes and updates to various pieces of South African legislation related to compliance, including:
- The Financial Intelligence Centre Act (FICA), which defines money laundering offenses and reporting obligations. Key changes include new cash transaction reporting thresholds.
- The Protection of Constitutional Democracy Against Terrorist and Related Activities Act (POCDATARA), which requires reporting of any transactions suspected to be related to terrorist financing.
- The Financial Advisory and Intermediary Services Act (FAIS), which defines what constitutes advice and intermediary services. Key changes include new fit and proper requirements for representatives and financial service providers.
- The Companies Act and other Acts relating to auditing requirements
If you would like to understand about the roots of the FCPA, what it entails, forbids, and what can companies do about it - enjoy this brief introduction, courtesy of ACURUS Business Consulting.
ACURUS Business Consulting - Business risk consulting focused on bridging complexity to simplicity, balancing business ethics, listening to understand, and providing customised solutions.
@acurusgta | www.acurus.ca | sid.joshi@acurus.ca | 1-416-577-8488
This document discusses trade and financial sanctions and their implications for organizations. It covers topics such as what sanctions are, determining if an organization possesses property owned by designated persons, preventing transactions involving sanctioned entities, and reporting requirements. The document provides guidance on searching client lists against sanctions lists, resolving potential matches, freezing identified property, and exceptions to freezing rules.
A UBO is an individual who ultimately owns or controls 25% or more
of an entity (whether directly as a shareholder or indirectly via control
of companies) or other entities or structures that control the entity. In
short, it is the ultimate beneficiary regardless of the chain of control.
The document outlines the key provisions of the Foreign Corrupt Practices Act (FCPA) of 1977. It prohibits bribery of foreign government officials and requires companies whose securities are listed in the US to comply with accounting transparency provisions. The FCPA bans offering, promising, or giving anything of value to a foreign official to influence their acts or decisions or gain an improper business advantage. It applies to US companies and citizens operating abroad, as well as some foreign firms engaged in acts within US territory.
ECI FIRPTA - OPG Presentation 2015-06-24 FINAL DRAFTPaul Wiley
This document provides a summary of key concepts regarding effectively connected income (ECI) and the Foreign Investment in Real Property Tax Act (FIRPTA) for alternative investment managers. It discusses how certain investment and business activities conducted in the US, such as direct lending, loan origination, investments in partnerships, and interests in US real property, can generate ECI and be subject to US taxation. It also notes that otherwise safe harbored investment income and gains could be recharacterized as ECI if the underlying activities constitute a US trade or business. The document cautions managers to consider facts and circumstances carefully to avoid unintentionally generating ECI.
Anti Corruption Laws in Asia Pacific - Overview and ComparisonCharlotte Lang
Corruption issues can have severe consequences for a business, aside from long-term reputational damage, investigation and conviction entail significant costs in management time, penalties and civil claims. Corruption investigations can also have a serious impact on a company’s M&A prospects.
Anti-corruption law enforcement is now significantly stronger in Asia Pacific. All international companies, and their senior management, are under increasing pressure to implement proper procedures to prevent corrupt behaviours when operating in the region. Using intermediaries, doing business with state-owned enterprises, or simply dealing with local business practices, all raise anti-corruption concerns that are particularly relevant in Asia Pacific.
Best Practices for Anti-Bribery and Anti-Corruption (ABAC) ComplianceWinston & Strawn LLP
Winston & Strawn hosted a webinar titled “Best Practices for Anti-Bribery and Anti-Corruption (ABAC) Compliance.”
The interactive webinar focused on the following ABAC compliance topics:
- Anti-bribery and anti-corruption authorities
- Essential elements of a comprehensive and effective compliance program
- Implementing your compliance program in real-world scenarios
- Problem management and escalation protocol
E-book: How to manage Anti-Money Laundering and Counter Financing of Terroris...Jitske de Bruijne
Financial Institutions continue to face heightened fines and regulatory scrutiny over their AML/CFT Programs. This e-book helps you to manage AML/CFT Programs.
Guyana has signed and ratified the Inter-American Convention Against Corruption (IACAC) and the UN Convention Against Corruption (UNCAC) but its compliance has been lacking in several key areas. An OAS review found that oversight bodies like the Audit Office lack independence and resources, and anti-corruption legislation is needed. Issues include non-competitive government hiring and procurement, diversion of state revenues, and failure to establish an anti-corruption agency. Overall, more action is needed to fulfill obligations under IACAC and UNCAC in order to increase transparency and accountability.
The document discusses anti-money laundering and countering the financing of terrorism. It defines money laundering and terrorist financing, and outlines the international and New Zealand frameworks. The new New Zealand regime imposes stricter obligations on reporting entities like customer due diligence and compliance programs. Non-AML regulators must ensure accurate registry data and cooperate due to interplays with other risks like sanctions, bribery, and tax evasion. AML/CFT detection requires cooperation across agencies.
This document provides an overview of the Foreign Account Tax Compliance Act (FATCA) and how it applies to private client structures such as trusts, corporations, and partnerships. It discusses key FATCA definitions, how private structures can be classified as foreign or domestic, and as foreign financial institutions (FFIs) or non-financial foreign entities (NFFEs). It also summarizes the compliance options for NFFEs and FFIs, including identifying substantial US owners, becoming a participating or deemed-compliant FFI, and using sponsoring FFI arrangements.
The FCPA established criminal and civil penalties for unlawful payme.pdfanokhilalmobile
The FCPA established criminal and civil penalties for unlawful payments or bribes (or promises
of payments) to foreign officials for the purpose of obtaining or keeping business, either directly
or indirectly or through agents, to influence any act or decision or to secure any improper
advantage in order to obtain or retain business.
The FCPA applies to foreign companies listed on a US exchange or required to file accounts
with the SEC, as well as by US corporations or US nationals. It also applies to foreign nationals
who cause an act in the US (such as a wire transfer or establishment of an e-mail server in the
US) which furthers an FCPA offence.
Accounting requirements apply to companies required to file periodic reports with the SEC.
Requirements cover both systems of internal control and adequate record keeping – non-
compliance can be a criminal offence.
The US federal authorities are pursuing cases aggressively and assessing large penalties for the
violations of FPCA.
Companies which may be subject to the FCPA are strongly advised to conduct suitable due
diligence on intermediaries, agents or local partners. Local U.S. Embassies or Consulates can
provide suitable profiles under the International Company Profile (ICP) service.
Managers and lawyers in most companies want to believe they work for clean, ethical
organizations that hire law-abiding employees. This positive bias often blinds US business
people to the reality of international business, where bribes, kickbacks, and false or unrecorded
transactions are common. Corrupt activity also exists in the US of course, but it is more difficult
to understand what is going on in foreign countries when your US managers have little or no
language ability or cultural context.
Some US business people believe and frequently say \"Everyone knows you can\'t do business in
(Mexico, China, India, Russia - pick a country) without paying bribes. It is part of their culture. It
is crazy to have a US law that makes paying bribes in foreign countries illegal in the USA.\"
Even if that were true, the FCPA is part of the legal environment for international business.
Compliance is not optional because American management has a low opinion of foreign
government officials.
Corruption in international business is common and frequently ignored.
Investigation, prosecution and punishment under the FCPA is common.
Understand your company\'s risk of being involved in international bribery.
Your program requires a Standalone International Anti-corruption Compliance policy, and an
Executive who is Accountable for the “Tone at the Top”.
Train your board, management, employees and third parties who distribute your products
Know all the 3rd parties your company uses in business outside the USA and conduct due
diligence.
Establish a set of internal controls over company expenditures and assets.
Do not permit facilitating payments.
Plan for the likelihood you will have to conduct high quality international internal inves.
Identification and namecheck : Clarification - by CDDS CDDS
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The UK Bribery Act 2010 introduces several new bribery offenses that expand the UK's jurisdiction over bribery. It prohibits bribery of foreign officials, private individuals, and failure by companies to prevent bribery. It covers both UK and non-UK companies that do business in the UK. Penalties are severe, including up to 10 years in prison and unlimited fines. Companies must implement adequate procedures to prevent bribery by persons associated with them to use as a defense. UK enforcement authorities plan to aggressively enforce the new law.
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2. Overview
♦ The
US FCPA regime
♦ The
UK Bribery Act
♦ Ukrainian
♦ Why
anti-corruption laws
important to Ukrainian companies?
♦ Compliance
♦ What
should you do if you find a problem?
2
3. The Key Provisions of the US FCPA
♦ The
Foreign Corrupt Practices Act makes it illegal for any U.S.
person or company or anyone acting on their behalf (whether U.S.
person or not) or for any issuer (whether U.S. entity or not) to
bribe a foreign official or foreign political party for the purpose of
obtaining or retaining business
♦ The
FCPA also applies to foreign companies and persons if an act
in furtherance of the corrupt payment took place in the U.S.
♦ The
FCPA prohibits not only direct payments, but also any
payments made through any intermediary to a foreign government
official
3
4. What Constitutes a Bribe?
♦
Payment, offer of payment, promise to pay, or authorization to
pay
♦
Money or anything of value
♦
Corruptly or with Improper Purpose
♦
To a foreign official or third parties while knowing that all or a
portion will be used by the third party for the prohibited activities
4
5. What Does “Anything of Value” Mean?
♦ The
FCPA prohibits the giving (directly or indirectly) of anything of
value, not just money
♦ It
therefore applies to gifts, charitable donations, travel expenses,
goods or services, loans, excessive entertainment, or other
personal or financial favors for the foreign official or any member
of his or her family
♦ The
FCPA also includes favors such as political or charitable
donations (the favor does not have to be explicitly requested)
5
6. Limited Exception - Facilitating Payments
♦
Ordinarily and commonly performed by a foreign official
♦
Not intended to influence the exercise of discretion by the
foreign official
♦
Nominal amount and is made for the sole purpose of
facilitating, expediting or securing the performance of a
non-discretionary routine act to which Company is entitled
♦
Be very careful before authorizing these – it is a very
limited exception
7. Limited Exception - Facilitating Payments (continued)
♦
♦
♦
♦
These include:
♦ Obtaining permits, licenses, or other official documents;
♦ Processing papers such as visas and work orders;
♦ Providing police protection, mail pick-up and delivery, or scheduling
inspections associated with contract performance or inspections
related to transit of goods;
♦ Providing telephone service, power and water supply, loading and
unloading cargo, or protecting perishable products from
deterioration; or
♦ Actions of a similar nature
May not be permitted under local law
Not permitted under anti corruption laws enacted by many countries
Not permitted under Ukrainian law
8. What Does “Improper Purpose” or “Corruptly”
Mean?
♦
An improper purpose includes:
♦ to obtain or retain business
♦ to direct business to another person or firm
♦ to obtain any other unfair advantage, such as:
♦ tax exemption or benefit
♦ reclassification or under valuation for customs purposes
♦ issuance of license or permit
♦ government concession, franchise, or contract
♦ waiver of penalties for non-compliance with law
♦ facilitating VAT refund even if a company (exporter) is entitled to VAT
refund under the law (e.g. Alfred C. Toepfer International and ADM
investigations)
8
9. What Does “Knowledge of Improper Purpose”
Mean?
♦ Knowledge
can be demonstrated where a party is aware of:
♦
an improper payment
♦
circumstances for an improper payment exist
♦
an improper payment is substantially certain to occur
9
10. Who Are Government Officials?
♦ An
employee of a government agency
♦ A legislator
♦ A member of a political party
♦ A candidate for political office
♦ A member of a royal family who has government official
responsibilities
♦ An official or employee of a state-controlled or state-owned
business enterprise (including doctors in government hospitals)
♦ A consultant acting for or on behalf of a government or
government agent
♦ A public international organisation
10
11. Travel and Entertainment
♦ Certain
expenses including but not limited to gifts, business
entertainment, payment of travel expenses, lodging, meals,
charitable contributions, educational or employment opportunities
and/or assumption or forgiveness of debt may be treated as
"bribes" under relevant laws and the FCPA, as a thing of value, if
offered or given in order to obtain an improper business
advantage
11
12. Permissible Payments for Travel and
Entertainment
♦ Payments,
gifts, offers or promises of anything of value that are
reasonable and bona fide expenditures, such as travel or lodging
expenses incurred by or on behalf of a foreign official, and directly
related to:
♦
the promotion, demonstration or explanation of products or
services; or
♦
the execution or performance of a contract will not constitute a
bribe.
12
13. Permissible Payments for Travel and
Entertainment? (continued)
♦
All expenses should be:
♦
moderate or reasonable
♦
company representative present
♦
contemporaneous with event (directly related to promotion of product or
execution of contract) and appropriate balance between business
purpose and the entertainment and leisure activities
♦
decision-Maker alone; no spouses, children etc.
♦
transparent
♦
expenses supported by appropriate receipts
13
14. Bribes Paid with Employee Funds Are Still
Bribes
♦
It is not okay to pay the bribe out of your own pocket (the
Company will still get in trouble, and so will you).
Don’t be the reason the Company gets in trouble…
14
15. Accounting Provisions (US)
You are required to:
♦ keep books and detailed records that accurately reflect the
transaction and disposition of corporate assets
♦ devise and maintain an adequate system of internal accounting
controls:
♦ ensure transactions are executed in accordance with
management’s general or specific authorization
♦ ensure transactions are recorded to permit preparation of
financial statements in conformity with generally accepted
accounting principles, and to maintain accountability for assets
♦ Applies only to issuers
15
16. What Anti-Corruption Due Diligence is Required
for Mergers and Acquisitions?
♦
Aims of due diligence = proportionality
♦ ensure target business is sound and value not distorted by bribery
♦ identify early whether any bribery exposure
♦ ensure no successor liability
♦ provide basis for negotiating future penalties if wrongdoing uncovered
♦ provide basis for monitoring target to ensure quality of anti-bribery programme
♦
Conducting due diligence
♦
initiating the process
♦
appoint manager to lead anti-bribery component
♦ initial assessment of target and scoping of exercise
♦ develop timetable
initial screening
♦ identify anti-bribery programme
♦ first discussion with target
♦ identify immediate risks and red flags
♦
16
17. What Anti-Corruption Due Diligence is Required
for Mergers and Acquisitions? (continued)
♦ Detailed
analysis
♦ review of target’s markets and competitors
♦ corporate intelligence and background checks
♦ examine target’s anti-bribery programme
♦ interview management and key personnel and assess tone
from the top
♦ external interviews and site visits
♦ review data room
♦ detailed financial review
♦ Report and Decision
♦ Post-acquisition Due Diligence
17
18. Public Tenders
♦ Good
♦
♦
♦
practice
review procurement laws and comply
carefully review tender documents, award criteria and ensure
reasonable and level playing field
check for any conflicts of interest
♦ Pitfalls
♦
how do you respond to requests for civic improvements?
♦ identify and clarify decision-maker – query if sole individual
♦ gifts and hospitality
♦ check for any conflicts of interests
♦ use of middlemen
18
19. Training and Compliance Are Essential
♦ The
governments of the US and UK are looking for companies
that have a “culture of compliance.”
♦ US
government says training should occur “from the board room
to the supply room.”
♦ Employees
need to be trained and counseled and encouraged to
ask questions.
19
20. Who Enforces These Laws in the US, UK and
Ukraine?
The UK
♦ Serious
♦
♦
♦
Fraud Office
SFO attitude to self-reporting changed in October 2012
more pressure to self-report quickly
advantages to full investigation and self-reporting
♦ Future
♦
♦
Deferred Prosecution Agreements
prosecutions inevitable; SFO under pressure to deliver
20
21. Who Enforces These Laws in the UK, US and
Ukraine? (continued)
The US
Department of Justice/Securities & Exchange Commission –
they work both parallel and in tandem
♦ US Govt believes that you should self report at the first hint of
trouble
♦ Most companies prefer to know something about the facts first
♦ Very interested in patterns, large cases, and cases where
management ignored “red flags”
♦ Also very interested in books and record cases
♦ US
21
22. Who Enforces These Laws in the UK, US and
Ukraine? (continued)
Ukraine
♦
Public Prosecution Office, including coordination of efforts of all
enforcement agencies
♦
Organized Crimes Department of Interior Ministry
♦
Corruption and Organized Crimes Department of State Security
Service
♦
Ministry of Justice – responsible for coordination of anticorruption
strategies
22
23. UK Bribery Law?
♦
Consolidated scheme of offences
♦
Covers private and public sector bribery
♦
Introduced five criminal offences on July 1, 2011
♦
♦
requesting, agreeing to receive or accepting a bribe
♦
bribing a foreign public official
♦
new offence of the failure of a commercial organisation to prevent bribery
♦
♦
offering, promising or giving a bribe
directors and managers: ignoring or consenting to a bribe
Organisation must implement, maintain and enforce effective anti-bribery
policies, systems and controls
23
24. Who is Covered?
♦
Worldwide reach – will apply wherever the bribe is paid
♦
Liability for bribe paid anywhere in world
♦
Liability (failing to prevent bribery) for bribe paid anywhere in world by entity or
individual performing services on its behalf
♦
Applies to:
♦ UK individuals (e.g. including all UK passport holders, including OTs etc)
♦ UK companies
♦ residents in the UK
♦ foreign companies carrying on business in the UK
24
25. How is it Different from the FCPA?
♦ FCPA public
♦ FCPA does
♦ FCPA only
♦ UK
sector only
not prohibit facilitation payments
criminalises active not passive bribery
has statutory defence of “adequate procedures”
25
26. Ingredients of General Offences of Paying or
Receiving a Bribe
require “improper performance” of (widely-defined)
function or activity
♦ Offences
♦ What
♦
is improper performance?
breach of an obligation of good faith, impartiality or trust
♦ Improper
♦
♦
performance judged by UK standards
local custom or practice to be disregarded
unless permitted by written law
26
27. How Should You Respond to Requests for
Facilitation Payments?
♦ Facilitation
payments are unlawful in the UK
♦ However,
it is recognised that there is a defence of duress if
payment is made to protect against loss to life, limb or liberty
♦ Be
mindful of what payment is for and whether the amount
requested is proportionate
♦ Ask
for a receipt detailing the reason for payment
27
28. UKBA: Failing to Prevent Bribery – Adequate
Procedures (Section 7 Corporate Offence)
♦ Government
♦
♦
♦
♦
♦
♦
Guidance on adequate procedures:
top-level commitment to prevent bribery
risk assessment
proportionate policies and procedures to deter and detect
bribery
due diligence on those performing services on behalf of an
organisation (e.g. agents/intermediaries)
communication and training of policies and procedures
regular monitoring and review of policies/procedures
28
30. Deferred Prosecution Agreements
♦ DPAs
introduced on 25 April 2013 by Crime and Courts Act 2013
but not expected to be in force until early 2014
♦ DPAs apply to corporates, partnerships or unincorporated
association; not individuals
♦ DPAs apply to economic crimes including accounting fraud and
bribery
♦ DPP and SFO joint Code for Prosecutors to be published in late
2013: guidance on principles to be applied in deciding whether
DPA appropriate
♦ High level of judicial involvement increases risk of non-approval of
DPA
30
31. Ukrainian anti-corruption law (UACL)
UACL, dated April 7, 2011 # 3206-VI
♦
Covers public and private sector bribery
♦
Offences under UACL
♦
offering, promising or giving a bribe
♦
accepting a bribe or agreeing to a bribe (its offering or promise)
♦
bribing a foreign public official (including international organizations and
foreign state-owned enterprises)
31
32. Ukrainian anti-corruption law (UACL)
Bribes
♦
Money or any other property, including services, any favours or benefits
♦
Given or accepted (including promises or offers and their acceptance)
illegally,
including any indirect dealings (e.g. through agents, vendors, resellers,
legal representatives or any other related or unrelated intermediaries)
32
33. Ukrainian anti-corruption law
Who are public officials?
♦
♦
♦
♦
♦
♦
♦
♦
an officer in any governmental agency (national or local)
a legislator (national or local)
a judge
an officer of governmental enforcement agencies
a tax officer
an officer in any state owned entity or enterprise
any person offering public services, including auditors, experts, arbitrators
an officer in any foreign governmental agency, international
organization, or foreign state-owned enterprise
33
34. Ukrainian anti-corruption law
Private Sector Offences
♦
Private sector offences under UACL
♦
offering, promising or giving a bribe
to an officer or an employer of any company or any legal entity in Ukraine
♦
accepting a bribe or agreeing to a bribe (its offering or promise) by
an officer or an employee of any company or any legal entity in Ukraine
34
35. Ukrainian anti-corruption law
Exceptions
♦
UACL provide for very limited actions for gifts
♦
No exception for facilitation payments, e.g.:
♦
♦
♦
to obtain licenses and permits
to obtain timely VAT refunds
to enforce a court decision
35
36. Ukrainian anti-corruption law
Liability
♦
Any money or property obtained as a result of a bribery are subject to
confiscation by the state based on decision of a court
♦
Any transaction entered into as a result of a bribery is void
36
37. Ukrainian anti-corruption law
Criminal Liability
♦
Bribing a public official, including officers of state-owned or municipally-owned
enterprise, could result in jail of maximum 10 years and confiscation of personal
property
♦
from September 1, 2014, a private legal entity would become criminally liable for
bribes:
♦
maximum fine of UAH 1,275,000
37
38. Ukrainian anti-corruption law
Anti-Trust (Unfair Competition)
♦
Bribing public or private officials to obtain any commercial benefit in Ukraine, e.g. to
win a public tender for lucrative contracts, could be treated as unfair competition
violation
♦
Unfair competition violations are subject to a fine in Ukraine up to 5% of worldwide
sales
♦
Unfair competition violations are enforced by the Anti-Monopoly Committee of
Ukraine
38
39. Why US FCPA and UKBA Important for
Ukrainian Companies?
Ukrainian company
♦
♦
♦
♦
♦
♦
♦
considers dealing with US or UK companies
considers a joint venture with US or UK companies
considers a future merger with US or UK companies
considers listing its shares on US stock exchange
considers business in the US or UK
same applies to dealings, joint venture or prospective mergers with any non-US or
non-UK companies, which are subject to US FCPA or UKBA rules, including US
listed companies
same applies to affiliate of UK or UK companies
39
40. Risk Areas
Risk areas:
♦
♦
♦
♦
♦
♦
uncontrolled use of cash
inadequate control procedures
payments to charities and public bodies
payments to intermediaries, including distributors, vendors, resellers, legal
representatives, especially if not commercially justified or close to any illegally
obtained benefit (e.g. award of a public tender, VAT refund, etc.)
payments to intermediaries in the US or US bank accounts of foreign
intermediaries
public tenders
40
41. FCPA Investigations
Alfred C. Toepfer International (Germany) / ADM (US)
♦
December 20, 2013, US DOJ Press-Release
♦
ACTI, German subsidiary of ADM, pleaded guilty
ACTI agreed to pay USD 17 M in criminal fines to resolve charges that it paid bribes through
vendors to Ukrainian government officials to obtain VAT refunds
ADM failed to implement sufficient policies and procedures to prevent the bribe payments,
although ultimately ADM disclosed the conduct, cooperated with the US government, and
instituted extensive remedial efforts. DOJ entered into NPA with ADM
ADM agreed to pay USD 36.5 M to the US SEC
ADM and ACTI also agreed to cooperate with DOJ, to periodically report the companies’
compliance efforts, and to continue implementing enhanced compliance programs and
internal controls designed to prevent and detect FCPA violations
♦
♦
♦
♦
41
42. FCPA Investigations
Daimler AG and DaimlerChrysler Automotive Russia SAO (DCAR)
♦
April 1, 2010, the DOJ Press-Release
♦
Daimler AG (Germany), and 3 of its subsidiaries, including DCAR, have resolved charges
related to FCPA investigation by the US DOJ into the company’s worldwide sales
practices, and agreed to pay USD 93.6 M in criminal penalties
DCAR admitted that it made improper payments to Russian federal and municipal
government officials to secure contracts to sell vehicles by over-invoicing the customer and
paying the excess amount back to the government officials, or to other designated third
parties that provided no legitimate services to DCAR or Daimler AG. When requested, DCAR
or Daimler AG employees caused the wire transfer of payments from Daimler AG’s bank
accounts in Germany to, among other destinations, U.S. and Latvian bank accounts held by
shell companies with the understanding that the money, in whole or in part, was for the
benefit of Russian government officials.
♦
42
43. Compliance – How Do You Assess and Respond
to Risk?
♦ Periodic
assessment
♦ A risk assessment should consider risks that arise from:
♦
countries
♦
business sectors
♦
types of transaction involved in
relationships business conducted
♦ Appropriately resourced, identifying internal and external
information sources allowing risk to be assessed
♦ Overseen by top level management
♦ Anti-Corruption and Bribery Policy
♦
43
44. Compliance – Who Should Run It?
♦ Commitment
from board of directors to preventing bribery and
establishing correct culture
♦ Top-level
management involved in development of bribery
prevention procedures, risk assessment approval and
communication of the organisation’s stance
♦ Independent
Compliance team to manage and report to the
Board?
♦ Awareness
from all levels of management and workforce
44
45. Compliance: Third Parties, Agents, and the
Need for Due Diligence
♦ FCPA/UKBA
prohibit corrupt payments through intermediaries,
including distributors, joint venture and agents
♦ Prior to using any third party agent, companies should:
♦ establish that the third party is not a foreign official
♦
establish that the third party is qualified
♦
evaluate the proposed compensation
♦
evaluate the reputation of the third party
♦
investigate red flags
♦
ensure that any third party signs agreements that include antibribery provisions, and is aware of the FCPA and corporate
policy
45
46. Compliance – Level of Training
♦ Proportionate
procedures
♦ Procedures embedded and understood in organisation
♦ Effective communication in high risk areas e.g. hospitality and
charitable donations
♦ Tailored training to identified risks associated with specific
positions and countries
♦ Policies and procedures should be monitored and reviewed
♦ Encouragement regarding raising concerns
46
47. Whistleblowers?
♦
♦
♦
US perspective
♦ incentivised whistle-blowing
♦ Dodd-Frank law encourages whistleblowers. Very large rewards
UK perspective
♦ no incentivised whistle-blowing … yet
♦ “adequate procedures”
♦ protection of whistleblowers – Public Interest Disclosure Act 1998
Ukraine perspective
♦ Criminal liability for failure to report bribery
♦ An individual failing to report could be treated as an accomplice
47
48. Dodd-Frank Act
Whistleblower Provisions: Section 922
♦
♦
♦
♦
Act amends the Securities Exchange Act and establishes a new whistleblower
incentive program that provides monetary rewards between 10 and 30% to
whistleblowers who report securities violations that lead to the recovery of
sanctions exceeding $1 million in criminal and civil proceedings
Amount received includes not only monies collected by the SEC, but also fines
and penalties assessed by the DOJ, self-regulatory organizations and state
Attorneys General
Whistleblower provisions previously only covered insider trading violations and
applied solely to civil penalties recovered and did not provide guaranteed
minimum reward
Dodd-Frank expands scope of conduct to include violations of Foreign Corrupt
Practices Act (worldwide reach)
49. Whistleblower Provisions: Section 922
Original Information
♦ Original
♦
♦
♦
♦
♦
Information:
Derived from independent knowledge or analysis
Not previously know to the Commission
Not derived from material uncovered in existing investigations,
attorney or client communications, but there is a significant
issue here over what the SEC can use with respect to a
company’s internal personnel and its communications with
company personnel
Cannot be obtained from publicly available sources, but
question remains what about “analysis” of public information
Does not have to be “first hand’ account of information
50. Whistleblower Provisions: Section 922
Representation
♦ Whistleblower
may be represented by counsel through whom they
can provide information anonymously
♦ Identity
of whistleblower must be disclosed prior to payment of any
award
♦ Claims
to the SEC must be filed under oath and subject to perjury
charges (the SEC provides claim forms in the proposed rules)
51. What Should You Do if You Find a Problem?
INVESTIGATION – The three Cs:
Confidence
♦ know the facts well enough to make an appropriate decision
(2) Credibility
♦ vigorous investigation in good faith
♦ well documented
(3) Cost
♦ balancing costs with need for confidence and credibility
(1)
51
52. Red Flags to Possible Violations
Money passing through an agent or consultant to a foreign official or
political leader to obtain certain actions
♦ Use of a consultant who is connected or affiliated with a foreign official
or political leader
♦ Prior accusations involving the agent or consultant alleging improper
business practices
♦ Requests that commissions or other payments be made in a third
country or to another entity
♦ Requests that commission payments be made before public tender
award decision
♦ Payments that appear to be higher than customary or standard rates
♦ Payments to persons outside the scope of a transaction
♦ Insistence by the foreign customer that a particular person be used as
an intermediary
♦
52
54. Conducting an Effective Investigation (continued)
♦
♦
Documents
♦ record of collation and review exercise
♦ types of documents and locations
♦ key custodians
♦ collation exercise
♦ storage
♦ review
♦ report
People Issues
♦ tipping off
♦ interviewer
♦ what to tell the interviewee
♦ preparation
♦ record of interviews
♦ suspension of employee
♦ disciplinary process/termination of employment
54
55. Conducting an Effective Investigation (continued)
♦ Conclusions
recording conclusions
♦ reporting to the Board
♦ Self-reporting
♦ Civil Litigation
♦ Follow-up
♦ compliance programme
♦ dismissal of employees
♦ PR (internal and external)
♦
55
56. Who Should Run the Investigation?
of investigators – must be credible for management
to have confidence in the results
♦ Senior Managers
♦ Non-Executive directors
♦ In-house Counsel/Compliance/Audit
♦ External lawyers
♦ External auditors
♦ Independence
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57. Data Protection Concerns
♦ Can
be problematic
♦ Data protection and privacy laws in each country need to be
considered and obeyed
♦ Data may not be able to be removed from country
♦ Some countries, e.g. France, Germany and China, have markedly
different laws when it comes to interviewing employees, reviewing
documents and data, and removing investigation related materials
from the country.
♦ Data may need to be reviewed in-country
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58. Self-Reporting
♦ UK
♦
♦
♦
♦
New SFO guidance
More pressure to self-report quickly
Advantages to full investigation and self-reporting
Will prospect of DPA incentivise self-reporting?
♦ US
♦
♦
♦
♦
Encouraged to self-report as soon as become aware
Usually, at least some investigation takes place first
Whistleblower considerations
Penalty considerations
58
60. Attorney Contact Information
EDWARDS WILDMAN
Stephen G. Huggard
Partner
+1 617 239 0769
shuggard@edwardswildman.com
111 Huntington Avenue
Boston, MA 02199
United States
Antonio Suarez-Martinez
Partner
+44 (0) 20 7556 4526
asuarez-martinez@edwardswildman.com
Dashwood, 69 Old Broad Street
London EC2M 1QS
United Kingdom
60
61. Attorney Contact Information
MARCHENKO DANEVYCH
Oleh Marchenko
Partner
+380 44 220 0711
oleh.marchenko@marchenkodanevych.com
Office 49, 4-B, Ivana Franka Str.
Kyiv, Ukraine
Andriy Guck
Senior Associate
+380 44 220 0711
andriy.guck@marchenkodanevych.com
Office 49, 4-B, Ivana Franka Str.
Kyiv, Ukraine
61