Illustration by Pete Ryan
The U.S. Department of Justice and the Securities and Exchange Commission (SEC) are no longer the only two cops on the global anti-corruption beat.
The United States was the first jurisdiction to criminalize the bribery of foreign officials with the passage of the Foreign Corrupt Practices Act (FCPA) in 1977. The legislation was hailed as a landmark victory for fair enterprise, but has been hamstrung by the lack of equivalency across the globe. At the signing ceremony, then-president Jimmy Carter warned that “these efforts, however, can only be fully successful in combating bribery and extortion if other countries and business itself take comparable action.”
It took until the late 1990s for other countries to begin criminalizing foreign bribery. A series of international treaties addressing bribery came into existence in fairly rapid succession, including the Organization for Economic Co-operation and Development’s (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the United Nations Convention against Corruption.
This surge in legislation did not lead to a corresponding surge in enforcement, at least initially. According to data released by the OECD in 2014, more than half of the signatories to the OECD’s anti-bribery convention had failed to impose any sanctions for cross-border corruption.
But we’re beginning to see some momentum building. According to TRACE’s 2014 Global Enforcement Report, there were 211 investigations involving foreign bribery being conducted in 27 countries by the end of that year. These cases are being investigated by countries that even five years ago were considered to be anemic enforcers, including China, Slovakia and Argentina. And while the U.S. leads the world in total enforcement actions overall, in 2014 more enforcement actions were brought outside than within the United States.
One contributing factor has to do with greater internal scrutiny. Numerous governments have turned their sights on bribery among their own officials; countries on almost every continent are conducting investigations into companies alleged to have bribed their officials. At the end of 2014, there were almost twice as many countries investigating the bribery of their own officials than were investigating the alleged bribery of foreign officials.
There has also been increased international cooperation among enforcement agencies. For example, earlier this year 21 Asia-Pacific Economic Cooperation (APEC) member countries agreed to begin sharing sensitive case information among themselves. The U.S. Department of Justice has stated that almost all FCPA investigations involve an important element of information sharing. The agency has recently worked with authorities in countries as varied as Colombia, Indonesia, Latvia and Saudi Arabia.
Another key contributor is the recent decision by a number of countries to arm themselves with the powers to seek out bribery beyond their borders. In 2013, Canada amended its Corruption of Foreign Public Officials Act to expand jurisdiction to acts committed by corporations incorporated, organized or formed under Canadian law. Also in 2013, Brazil passed the Clean Companies Act, which gives Brazilian authorities jurisdiction over any company with a branch, registered office or other representation in Brazil. While Australia is considering expanding the reach for its foreign bribery offences, authorities are investigating a surge of foreign bribery allegations within the country. And, as of last year, the U.K. Serious Fraud Office was pursuing cases against 37 defendants.
Companies and individuals also seem more willing to disclose wrongdoing to government authorities. The OECD’s 2014 Foreign Bribery Report noted that one-third of enforcement actions were the result of self-reporting. Companies like Yara International and Tencent Holdings have reported internal wrongdoing to authorities in Norway and China, respectively.
Another corresponding trend is an increase in protections for whistleblowers not only in the U.S., but also in countries like China and India. The SEC has stated that 30 per cent of its foreign bribery investigations began after being contacted by a whistleblower. In China, this figure is as high as 80 per cent.
Expanded enforcement has also generated renewed interest within companies in strengthening their compliance programs. According to Deloitte’s 2015 Compliance Trends Survey, more than half of African companies surveyed had increased their compliance budgets over the past year.
International banks in Asia intend to double or even triple the size of their compliance teams, demonstrating a growing culture of compliance within these companies. Ernst & Young’s APAC Fraud Survey 2015 found that only 20 per cent of employees of large companies in 14 Asia-Pacific countries stated that they were willing to work for a company involved in bribery or corruption.
The internationalization of anti-bribery enforcement is a positive one for corporations as a whole. In the past, companies with a connection to the United States – and so subject to U.S. law – would argue that the strict enforcement of anti-bribery laws placed them at a competitive disadvantage relative to their peers. If that was ever true, it’s less true now.
As more countries enforce anti-bribery legislation, compliance standards will begin to normalize among businesses and across industries.
It’s a welcome evolution, but one that has only begun to take hold.
Alexandra Wrage is the president of the non-profit international anti-bribery group TRACE, as well as the author of two books on bribery and extortion.