Often times, discussion of complex legal or public policy issues is clouded by simplistic rhetoric and narrative spinning.
Just don’t bribe. A zero tolerance for bribery.
Sound good and to be sure in certain Foreign Corrupt Practices Act enforcement actions the simplistic rhetoric and narrative is actually true. For instance, Siemens had a “corporate culture in which bribery was tolerated and even rewarded at the highest levels of the company.” Odebrech/Braskem maintained a business unit that allegedly “served as little more than a bribe-paying department for the benefit of Odebrecht and Braskem.”
Yet in many other FCPA enforcement actions – and the FCPA compliance discussion generally – cliches like “just don’t bribe” and a “zero tolerance for bribery” are overly simplistic because it all depends on what the “b” word means.
The latest in simplistic rhetoric and the spinning of a narrative is courtesy of Michael Volkov who writes in his Corruption, Crime & Compliance blog under the title “Corporate Doublespeak: A Bribe Is a Bribe” in pertinent as follows:
“Forgive me for questioning the use of corporate language but when I read phrases such as “improper payments,” “Questionable payments,” and other equally vague terms used to describe flat out bribes, I question the need for companies to avoid using accurate language. My overriding question in these circumstances is why can’t the company use straightforward language? A bribe is a bribe and no matter how you characterize the payment, it is still a bribe.”
I disagree.
“Golf in the morning and beer-drinking in the evening” (see here) is … well … golfing and drinking something that is done on a weekly basis by many people. Yet, few would use the “b” word to describe this activity.
Tickets to sporting events (see here for example) are … well … tickets to sporting events and something that is done across the business landscape on a weekly basis. Yet, few would use the “b” word to describe this activity.
Charitable donations (see here for example) are … well … charitable donations and many would applaud business organizations for being good corporate citizens and engaged in their communities. Yet, few would use the “b” word to describe this activity.
Internship and jobs (see here for example) are … well … internships and jobs and business organizations offer them to individuals on a daily basis. Yet, few would use the “b” word to describe this activity.
However, as the above linked examples all demonstrate, FCPA enforcement actions are increasingly based on entertainment issues, sports tickets, charitable donations, internships and jobs and even inconsequential things of value such as flowers, cigarettes, and visits to karaoke bars.
Most of the time, the underlying activity is legal and social acceptable.
Yet, when the underlying activity is directed to a certain type of individual (an alleged “foreign official”) and in the context of certain situations, the FCPA enforcement agencies may deem it bribery.
In short, when commentators use language such as “a bribe is a bribe and no matter how you characterize the payment, it is still a bribe” they are advancing simplistic rhetoric and spinning a narrative.
They are also wrong, because it all depends what the “b” word means.
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