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This Is Not How OECD Convention Article 4 Should Work

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As highlighted in this prior post, in 2014 Netherlands-based SBM Offshore resolved a $240 million Dutch law enforcement action alleging improper payments to sales agents and foreign government officials in Equatorial Guinea, Angola and Brazil between 2007 through 2011.

As highlighted in this prior post, in 2017 SBM Offshore and its wholly owned U.S. subsidiary, SBM Offshore USA Inc. resolved a $238 million FCPA enforcement action concerning conduct in Brazil, Angola, Equatorial Guinea, Kazakhstan and Iraq.

As highlighted in this prior post, in 2018 SBM Offshore announced a leniency agreement with Brazil law enforcement authorities pursuant to which it agreed to pay over $300 million for conduct occurring in the country.

Earlier this week, SBM Offshore disclosed:

“The Deferred Prosecution Agreement SBM Offshore signed with the United States Department of Justice on November 29, 2017 includes, among other things, an obligation to report on the status of the Company’s compliance program. The Company confirms that this three-year period has now ended, without extension or other conditions.

In Switzerland, three of the Company’s subsidiaries received a notification from the Bundesanwaltschaft in Bern. It concerns a suspicion that from 2005 till 2012 these subsidiaries failed to take the necessary measures to prevent the execution of corrupt payments during said period. The notification refers to the legacy settlements the company concluded in the Netherlands (2014) and Brazil (2018) as well as the Deferred Prosecution Agreement with the United States. The suspicion regarding the compliance controls shortcoming relate to payments covered by these agreements.

Erik Lagendijk, Chief Governance and Compliance Officer said: “The completion of our reporting to the Department of Justice marks the strength of the control measures the Company put in place. We did not expect this development in Switzerland as Swiss authorities have been involved in the matter from the time of the settlement in the Netherlands in 2014. We will engage with the Swiss public prosecutor and seek clarification.”

The United States, Netherlands, Brazil, and Switzerland are all parties to the OECD Anti-Bribery Convention. Article 4 of the Convention states in pertinent part:

“When more than one Party has jurisdiction over an alleged offence described in this Convention, the Parties involved shall, at the request of one of them, consult with a view to determining the most appropriate jurisdiction for prosecution.”

Having three OECD Convention countries – over the span of four years – bringing enforcement actions against the same company for, in part, the same core conduct – and now a fourth country investigating the same company for that same core conduct – is not how Article 4 of the OECD Convention is supposed to work.

Thus, it is not surprising that SBM Offshore “did not expect this development.”

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