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Women, Influence & Power in Law Conference
September 18-19, 2014
The Capital HiltonWashington, DC
The Global Anti-Corruption Architecture
Glenn T. Ware
Principal, International Anti-Corruption and Program Integrity
PwC
September 18, 2014
Global Anti-Corruption Architecture
3
Key milestones in the modern anti-corruption movement
Council of Europe Civil Law Convention enters into force
Council of Europe Criminal Law Convention on Corruption
enters into force
Business pressure to “level the playing field”
1980sUS Foreign Corrupt Practices Act (FCPA)
1977
Transparency International founded
1993
Inter-American Convention Against
Corruption enters into force
1997
African Union Convention on Preventing and Combating Corruption enters into force
United Nations Convention Against Corruption enters into force
OECD Anti-Bribery Convention enters into force
1999
2002
2003
2005
2006
• 1977 - U.S. implemented anti-corruption legislation to outlaw bribery in business transactions overseas (Foreign Corrupt Practice Act – FCPA)
• U.S. businesses pressured United States government to globalize the anti-corruption regulatory regime in order to “level the playing field”
• 1993 - Founding of Transparency International; put pressure on international community to create global treaty architecture
• Mid 1990’s - Normative movement; proliferation of international instruments and declarations “outlawing” corruption.
Global Anti-Corruption Architecture
• Signed and ratified by states
• Require state action to implement
International Treaties
• Created by individual states
• Often benchmarked against international standards
Domestic Law
• Civil and criminal enforcement
• Subject to state jurisdiction limits
Enforcement
• Five major MDBs• Very active in anti-
corruption enforcement
• Administrative sanctions process
• Enforcement not tied to state jurisdictions
MultilateralDevelopment
Banks
Enforcement
International Treaty Enforcement Multilateral Development Bank Enforcement
How do anti-corruption treaties impact business?
Emerging Multi-polar Enforcement Landscape
United StatesForeign Corrupt Practices Act (FCPA)
BrazilClean Companies Act
AustraliaCriminal Code Act Section 70
AustriaAustrian Criminal Code Section 304-305
United KingdomU.K. Bribery Act (UKBA)
CanadaCorruption of Foreign Public Officials Act
GermanyCriminal Code Sections 299 and 331EU Corruption Act International Corruption Act
FinlandPenal Code Chapter 9,16, 40
SwitzerlandSwiss Penal Code Section 322
ChileCriminal Code 248, 251bisLegal Entities Criminal Liability Law
Emerging Multi-polar Enforcement Landscape
African Development Bank
Asian Development Bank
European Bank for Reconstruction and Development
Inter-American Development Bank
The World Bank
Global Enforcement
Rise of Non-State Regulators
Emerging Multi-polar Enforcement LandscapeMultilateral Development Banks – Assessing Your Risk
02Do you know how to navigate the MDB sanctions process?
The MDB sanctions process is distinct from national law, and is unique to the MDBs themselves. This presents unique challenges for companies caught in the cross-hairs. Notable process features include (1) broad definitions of sanctionable practices, (2) permissive consideration of evidence, and (3) lower standards of proof characteristic of an administrative adjudicative process.
03Are you aware of potential criminal and civil liability?
MDB Risk
Do you know whether your project is MDB-financed?
MDBs operate across the full range of emerging markets – precisely the markets leading companies are targeting for growth. MDBs are particularly active in financing infrastructure, energy & mining, water & sanitation, health, transportation, and agriculture projects.
04How would cross-debarment
impact your global operations?
01
MDB investigators routinely collaborate with and refer cases to national law enforcement authorities, which can lead to concurrent investigations and overlapping civil and criminal liability.
Debarment by one MDB may result in automatic debarment by other MDBs. US and foreign government agencies are also increasingly respecting MDB debarments in their own procurement processes.
Emerging Multi-polar Enforcement LandscapeTransboundary Cooperation
Global Anti-Corruption Basics
10
How Investigations Begin: Whistleblowers
11
I WANT YOUTO BLOW THE WHISTLE ON
WASTE, FRAUD AND ABUSE BY U.S. GOVERNMENT CONTRACTORS!
Thinking of blowing the whistle?
Whistle blowers identify wrongdoings and stand up for their belief in what is right, despite enormous
personal sacrifice and career risk. If you are thinking of blowing the whistle on your employer or another
company, Contact our experienced lawyers today!
12
Pharma: Johnson & Johnson, Merck & Co. Inc, Eli Lilly and Co., Pfizer
Technology: IBM, HP, Maxwell Technologies, Comverse Technology, OracleOil & Gas:
Panalpina, Bonny Island,
Hercules Offshore, Inc.
How Investigations Begin: Industry Sweeps
13
How Investigations Begin: Press
14
How Investigations Begin: Other Countries
15
Increasing foreign anti-corruption laws
Increased coordination between national enforcement agencies• This can take the form of document collection, access
to witnesses and unofficial dividing of fines and credit in global settlements
The number of formal foreign bribery actions by countries other than the US increased by 71% between 2012 and 2013.
China became the leading enforcer against their own government officials.
Multi-Jurisdictional Investigations
Carbon Copy Prosecutions
Total: Paid $398 million to U.S. government and France brought criminal charges (ultimately acquitted)
Ralph Lauren: Paid $1.6 million to U.S. Government and Argentina brought prosecution
16
Document Collection & Review
17
Witness Interviews
18
Data privacy Translations (in
interviews and any forms)
Cultural pitfalls Labor requirements
1919
7/24/2014
19
Cross-Border IssuesSecurity risksProtect
whistleblowersPreserve the
privilegeOther local legal
issues
Resolving the Casewith the Regulators
20
Thank You If you have any questions, please contact:
Mara V.J. Senn ● [email protected] ● 202.942.6448
Mara V.J. SennWashington, D.C.
Beyond the FCPA
Michele E. Beasley
General Counsel, Chief Compliance Officer, Secretary and Senior Vice President
First Wind
September 18, 2014
The US FCPA is only one of many anti-corruption regimes worldwide that apply to US companies:• UK Anti-Bribery Act• World Bank and other international trade/finance agencies’ anti-corruption rules• Internal laws of countries where US companies do business
Some legal systems prohibit only bribery of government officials; other rules apply more broadlyCrafting compliance policies that cause your company to simultaneously comply with all applicable laws and rules is critical• Statement of principles• Broad prohibition of improper acts• Don’t just restate or summarize the FCPA• Do think about aligning procedures to actual risks and corruption incentives, by
jurisdiction
Beyond the FCPA
Anti-Corruption for a Small Planet