Recently, the Wolfsberg Group published its updated Anti-Bribery and Corruption Compliance Program Guidance (see here).
The Wolfsberg Group – which came together in 2000 at the Château Wolfsberg in Switzerland – is an association of thirteen global banks which aims to develop frameworks and guidance for the management of financial crime risks.
As stated in the Group’s release:
“The Guidance is a risk-based approach for the adequate development and implementation of compliance programmes to prevent, detect, and report acts of Bribery and Corruption and identifies areas of elevated risk. While no ABC compliance programme can prevent or protect against Bribery and Corruption risks completely, and there is no one-size-fits-all solution, this guidance can help the industry mitigate Bribery and Corruption risks by using elements including but not limited to:
- An applicable firm wide ABC policy;
- Governance with roles and responsibilities and access to top management;
- Periodic risk assessment to assess the nature and extent of the Bribery and Corruption risks, the establishment of a controls environment covering risks associated with anything of value, third party providers and customer related transaction risks, investments and acquisitions;
- Training and awareness including the sharing of lessons learned from internal and external events for continuous evaluation of the compliance programme adequacy; and
- Monitoring and testing for compliance with controls to identify failure to act in a manner consistent with the financial institution’s business principles/policies/codes of conduct/applicable laws or regulations.”
The Guidance is a fairly standard “best practices” type of document.
What makes the Guidance a bit ironic though is that of the 13 global banks that make up the Wolfsberg Group, 8 of the banks (Barclays, Citigroup, Credit Suisse, Deutsche Bank, Goldman Sachs, JP Morgan, Societe Generale, and Standard Chartered) have resolved FCPA (or related) enforcement actions. In fact, Credit Suisse and Deutsche Bank have resolved FCPA enforcement actions not just once, but twice.
As highlighted here, in 2019 Barclays resolved a $6.3 million FCPA enforcement action to “settle charges that it violated the FCPA by hiring the relatives and friends of foreign government officials in order to improperly influence them in connection with its investment banking business.”
As highlighted here, in 2018 Citigroup resolved a $4.75 million enforcement action based on its “failure to devise and maintain a sufficient system of internal accounting controls concerning a wholly-owned subsidiary, the Mexican bank Grupo Financiero Banamex, S.A. de C.V. (“Banamex”), sufficient to provide reasonable assurances that Banamex’s transactions were recorded as necessary to permit the preparation of Citigroup’s financial statements in accordance with generally accepted accounting principles (“GAAP”) and to maintain accountability for assets.”
As highlighted here, in 2021 Credit Suisse resolved a $99 million FCPA (and related) enforcement action concerning financing of various Mozambican maritime projects. As highlighted here, in 2018 Credit Suisse resolved a $77 million FCPA enforcement action focused on alleged improper hiring practices in China and the Asia Pacific region.
As highlighted here, in 2021 Deutsche Bank resolved an approximate $123 million FCPA enforcement action focused on the company’s relationship with third parties in Abu Dhabi, Saudi Arabia, Italy, and China. As highlighted here, in 2019 Deutsche Bank paid $16.2 million “to settle changes that it violated the FCPA by hiring relatives of foreign government officials [in both the Asia Pacific Region and Russia] in order to improperly influence them in connection with investment banking business.”
As highlighted here, in 2020 Goldman Sachs resolved a net $1.66 billion FCPA enforcement action in connection with its participation in 1MDB (Malaysia’s state-owned and state-controlled investment development company).
As highlighted here, in 2016 JP Morgan resolved a $202.6 million FCPA enforcement action based on its alleged improper hiring and internship practices in China and the Asia Pacific region.
As highlighted here, in 2018 Societe Generale resolved a net $293 million FCPA enforcement action concerning conduct in Libya.
As highlighted here, in 2015 Standard Bank resolved a U.K. Serious Fraud office enforcement action focused on allegations that a former affiliate company of Standard Bank made an improper payment to a partner in Tanzania intended to induce members of the Government of Tanzania to show favor to the affiliate’s and Standard Bank’s proposal for a US$600 million private placement offering to be carried out on behalf of the Government of Tanzania. As highlighted here, the SEC also brought an enforcement action against Standard Bank based on the same core conduct.
There is nothing “wrong” with the updated Anti-Bribery and Corruption Compliance Program Guidance released by the Wolfsberg Group.
It is a bit ironic though that most of its members have resolved a bribery enforcement action (and in some cases more than one).
It would be like a group of companies releasing a document titled “Best Practices for Reducing Forest Fires” when in reality a majority of the companies have resolved enforcement actions for starting forest fires.
