Regulatory compliance reviews

Foreign Corrupt Practices Act Reviews / Anti Bribery Reviews

The US Foreign Corrupt Practices Act (FCPA) seeks to control the activities of US nationals, US corporations and other US-listed entities - and their affiliates - operating anywhere in the world.  The Act imposes significant civil and criminal sanctions for any bribery or attempted bribery of foreign officials.  Entities covered by the Act may also be held responsible for inappropriate behaviour on the part of third party agents and consultants retained by them.

Inappropriate activity is not restricted to gifts involving cash: it includes anything of value, such as gifts, inappropriate or excessive entertainment and the provision of employment that may be considered to influence them for the purpose of obtaining a business advantage.

The FCPA and Sarbanes Oxley Act 2002 (SOX) also make wide-ranging provisions as to the accuracy and transparency of accounting for all transactions in which a company is involved.  These accounting requirements, which can result in prosecution in circumstances where no bribery offence is present or proven, apply irrespective of the size of a transaction, while traditional materiality considerations also do not apply.

In recent years, many other countries have introduced similar legislation affecting companies and individuals which may not be subject to the US FCPA.  On 13 January 2006 China unanimously ratified the UN Convention Against Corruption after signing it in December 2003.  The convention is aimed at corruption in both public and private sectors as well as international organizations.  All OECD member states and a number of other leading countries have enacted laws which not only prohibit the bribery of government officials but also involve significant penalties for both corporations and individuals concerned.  Many countries extend these restrictions to cover private corporate transactions as well as government-related transactions.

Entities may also be held responsible for inappropriate activity on behalf of their agents and consultants.  Contractual protections that may exist with consultants and agents requiring them to behave ethically will not necessarily protect companies from actions by overseas regulators.

The impact of this legislation in the China environment is particularly significant because the definition of a government official can include all employees of state-owned enterprises and employees of many other entities in which local or national government has an interest.

Those charged with governance and management of US corporations, US-listed Chinese entities and other corporations related to overseas entities registered in OECD countries should ensure the following:

• An effective compliance programme is in place which includes provisions for the detection and reporting of violations;

• Anti-Bribery Provisions are incorporated within Code of Conduct to essentially prohibit the promise, payment or giving of money or anything of value to any government official for the purpose of obtaining or retaining business;

• Appropriate awareness and training programs for all staff;

• Appropriate control is exercised over the activities of agents and consultants including due diligence and oversight provisions; and

• An effective system of internal accounting records that provides reasonable assurance, allows them to make and keep books, records and accounts, and accurately reflect the transactions and dispositions of assets of the company.

We provide pro-active FCPA compliance review, training and awareness services and offer fact-finding review services for companies exposed to overseas regulatory reviews.  We have accumulated in-house expertise and resources to deliver immediate and effective services in multiple jurisdictions across the Asia Pacific.