Senator Frank Church, Senator William Proxmire and Representative Robert Eckhardt were the main Congressional leaders when it came to passage of the Foreign Corrupt Practices Act. None are with us today, but if they were, it would be interesting to hear their reaction to the plethora of FCPA related survey information in the public domain 37 years after passage of the FCPA.
My hunch is that these Congressional leaders would be flabbergasted.
For instance, Kroll and Compliance Week recently released a joint “2014 Anti-Bribery and Corruption Benchmarking Report” (see here to download). The self-reported survey produced 197 responses from a range of industries and respondents were employed by companies with a median worldwide employee headcount of approximately 9.600.
The survey result that most caught my eye is the following: 81% of respondents anticipate the bribery and corruption risks to their company over the next 2-3 years to increase (51%) or remain the same (30%).
This response ought to prompt questions whether the current approach to enforcement – as well as enforcement policy – are effective.
I’ve long maintained that while ad hoc enforcement of alleged bribe payers is an important aspect of reducing bribery and corruption, the singular focus on actual enforcement statistics and the “pound the pavement” for more enforcement mantra of many does little to address the root causes of bribery and corruption in many instances. Foreign trade barriers and distortions are often the root causes of bribery and a reduction in bribery will not be achieved without a reduction in trade barriers and distortions.
Moreover, enforcement policy ought to be focused on creating the best positive incentives. The DOJ and SEC recognized this basic point in the FCPA Guidance, yet recent survey responses also ought to prompt many questions whether current enforcement policy is indeed creating the best positive incentives.
The vast majority of FCPA enforcement actions are based, in whole or in part, on the conduct of various third parties. Yet, the Kroll / Compliance Week survey reports that 58% of respondents said they never train third parties on anti-corruption efforts. (Survey respondents reported an average of 3,868 third parties).
This Grant Thorton General Counsel survey also contained survey results that should cause concern as to the effectiveness of current enforcement policy. According to the survey:
“Even with the movement towards the codification of compliance plans by the DOJ and the SEC over a year ago, only 29% of survey respondents state that they have implemented all of the guidelines, while 47% are “not sufficiently familiar” with the guidelines to reply. Among organizations that have not fully implemented the DOJ and SEC guidelines, 65% responded that a “lack of compliance staff and budgets” was the primary reason.”
Ditto for the recent LRN “2014 Ethics & Compliance Program Effectiveness Report” which found:
“Fewer than half of all programs average at least substantial progress on the critical hallmarks identified in the DOJ/SEC guidance on the Foreign Corrupt Practices Act.”
So what would the best positive incentive be to achieve greater adoption of best practices and thus FCPA compliance?
I have long submitted that an FCPA compliance defense (along the lines outlined in my article “Revisiting a Foreign Corrupt Practices Act Compliance Defense“) is an appropriate answer. So have several former high-ranking DOJ enforcement officials (see here among other posts).
I am not suggesting that an FCPA compliance defense is a panacea, but what I am suggesting and what I hoped to demonstrate in this post is that a compliance defense is the best positive incentive to achieve greater FCPA compliance.
While I can only speculate what various survey responses would be if there was an FCPA compliance defense, I am confident in predicting that more than 42% of companies would train third-parties on anti-corruption efforts, more than 29% of companies would be acting fully consistent with widely accepted best practices, and that more compliance staff and budgets would result.
And I further submit that these would all be good developments as an FCPA compliance defense is not a race to the bottom (as has been suggested) but rather a race to the top.