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International

“Are you out of your f%&$#ng mind?!” By Howard Sklar: The US CCO reaction to the question “Shall we disclose?”

By Howard Sklar Howard is a friend of thebriberyact.com.  Howard is a compliance officer with over 17 years of experience. He has been a prosecutor, regulator, compliance officer, and in-house counsel. He has run anti-corruption programs for American Express and for Hewlett-Packard and was head of compliance for three operating divisions at American Express. Howard is now Senior Counsel with eDiscovery software company Recommind.  Howard writes the excellent Open Air blog as well as blogging at Forbes on compliance. The SFO and the US DOJ and SEC frequently exhort corporations to Self Report concerns about corruption.  Yet, in spite of the public pronouncements to the contrary, in reality there are few examples of ‘real’ self reporting.  That is, where a company tells the enforcement agency something it would likely never have found out about unless the matter had been Self Reported. In this piece our friend Howard Sklar lays out why he thinks this ...

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Sectors

Part 1 – When it goes wrong: penalties for bribery

In this longer post than usual, friend of thebriberyact.com David Lawler gives us a forensic accountants eye view on the state of play in relation to penalties for corruption violations. David is a forensic accountant  and partner at Forensic Risk Alliance, a forensic accounting and e-discovery consultancy with offices in UK, US, France and Switzerland.  He has been involved with many FCPA and Bribery Act settlements, audits, and compliance assessments.  His book, Frequently Asked Questions in Anti-Bribery and Corruption has just been published by John Wiley.    He can be contacted on dlawler@forensicrisk.com. Much has been written – on this blog and elsewhere – about the steps that need to be taken by companies if they are to operate safely, and - crucially - be seen to operate safely, within the parameters of the various international bribery laws.  The dangers of failing to comply have been drilled into directors, and the ...

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News & what’s on

BREAKING: Ministry of Justice Publishes Deferred Prosecution Agreement consultation

The Ministry of Justice has today published the eagerly awaited government consultation into Deferred Prosecution Agreements. The consultation follows an informal consultation which kicked off in our offices in October last year. In the accompanying press release the Solicitor General Edward Garnier QC MP, who is a very strong supporter of the proposal said: “If we can encourage companies to self-report and come clean, pay penalties and mend their ways, the time and expense of investigations and prosecutions will be better spent elsewhere, enabling us to bring more individuals and companies to justice. An important aim of any DPA system would be to allow investigators and prosecutors to focus resources on those cases where a prosecution is in the public interest - and there will always be some where it is the only option." Justice Minister, Crispin Blunt said: “Law enforcement agencies have told us that they do not have the tools they need to tackle ...

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Bribery Act & Proceeds of Crime

Key ingredients of a compliance program

Have you wondered what key ingredients of a compliance program might look like? If your compliance program has the following and they have been properly implemented the only thing keeping you awake at night should be the sounds of your neighbours. We’ve distilled the list from the UK Bribery Act guidance and recent DOJ suggestions in Deferred Prosecution Agreements.  It may be that certain items are not appropriate in your business - but the menu you select from should include these - and if you are not using one of these ingredients then you should be able to justify why not, perhaps as a result of the Risk Assessment. Here goes: Internal controls, policies, and procedures including: (a) a system of internal accounting controls designed to ensure that the business makes and keeps fair and accurate books, records, and accounts; and (b) a rigorous anti-corruption compliance code, standards, and procedures designed to detect and ...

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Your Questions: Answered

Your questions answered: Peter Lloyd, CEO Mabey Group, looks at the tricky issue of commissions

Dear Peter, I wonder if you can help me.  I recently attended a session about the Bribery Act and the topic of commissions came up.  My questions are these.  First, I understand that the commissions need to be reasonable. How exactly do you work this out? In my industry commissions vary from market to market and often the exact percentage of commission is commercially sensitive information.  How do you benchmark to see if the percentage proposed is reasonable? Second, if after a contract is won and commission paid and on top I pay the agent a non contractual bonus - do you think the bonus is subject to the Bribery Act? Peter's answer: We have developed the concept of a 'value for money' check. What exactly is the representation doing for you and what might be a reasonable fee to pay for that work? Undoubtedly you will have to take account of the fact ...

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