This month’s FCPA Professor Apple Award goes to …
“Is this statute really the bear in the woods some say it is? Those answering yes may guide expansion away from foreign markets, reduce investments in regions at risk or refrain from opportunities fearing they cannot compete. This is understandable. The FCPA certainly poses a triple whammy: draconian government enforcement, higher internal compliance costs and reduced ability to control practices in unfamiliar cultures.
The reality, however, might be different. It could be that the FCPA is not a particularly formidable risk management task when compared to others faced by companies over the years. And the solution seems to be the same: the exercise of good judgment and the oversight of competent management. Indeed, the FCPA stories that strike fear into business leaders are those borne out of corporate governance issues. The FCPA stories that are akin to bumps in the road, on the other hand, are those where a rogue employee or division is corrected within a reasonable time frame. This makes sense, because the FCPA does not require a company to know what every person around the globe is up to, and it does not require certification that every fee is not a prohibited payment.
The unsurprising conclusion is that if directors and management use good judgment to establish reasonable internal communications and systems, the FCPA woods should be mostly clear.
The existence of the FCPA industry (and professionals who are available to conduct internal investigations at a high price) does not mean that this reaction is what is always required. What is required first and foremost is reasonable judgment exercised by directors and professionals who seek both compliance and solutions—without assuming a bear is present at every turn.”
[The FCPA Apple Award recognizes informed, candid, and fresh thought-leadership on Foreign Corrupt Practices Act or related topics. There is no prize, medal or plaque awarded to the FCPA Professor Apple Award recipient. Just recognition by a leading FCPA website visited by a diverse group of readers around the world. There is no nomination procedure for the Apple Award. If you are writing something informed, candid and fresh about the FCPA or related topics, chances are high that I will find your work during my daily searches for FCPA content.]