Other Guidance on Compliance and 2010, were drafted based on consultations with the private International Best Practices sector and civil society and set forth specific good practices In addition to this guide, the US. Departments of for ensuring effective compliance programs and measures
Commerce and State have both issued publications that contain for preventing and detecting foreign bribery. In addition,
guidance regarding compliance programs. The Department businesses may wish to refer to the following resources:
of Commerce’s International Trade Administration has pub- * Asia-Pacific Economic Cooperation—Anui-
lished Business Ethics: A Manual for Managing a Responsible Corruption Code of Conduct for Business:
Business Enterprise in Emerging Market Economies,” and the ¢ International Chamber of Commerce—ICC Rules
Department of State has published Fighting Global Corruption: on Combating Corruption:
sine Rise Managemen e Transparency International—Business Principles for Countering Bribery; e United Nations Global Compact— The Ten
Principles;
There is also an emerging international consensus on compliance best practices, and a number of inter-govern-
mental and non-governmental organizations have issued
guidance regarding best practices for compliance.*” Most ¢ World Bank—Integrity Compliance
notably, the OECD's 2009 Anti-Bribery Recommendation Guidelines;and and its Annex II, Good Practice Guidance on Internal ¢ World Economic Forum—Parinering Against
Controls, Ethics, and Compliance, published in February Corruption—Principles for Countering Bribery.
Hypothetical: Third-Party Vetting
Part 1: Consultants
Company A, a U.S. issuer headquartered in Delaware, wants to start doing business in a country that poses high risks of corruption. Company A learns about a potential $50 million contract with the country’s Ministry of Immigration. This is a very attractive opportunity to Company A, both for its profitability and to open the door to future projects with the government. At the suggestion of the company’s senior vice president of international sales (Sales Executive), Company A hires a local businessman who assures them that he has strong ties to political and government leaders in the country and can help them win the contract. Company A enters into a consulting contract with the local businessman (Consultant). The agreement requires Consultant to use his best efforts to help the company win the business and provides for Consultant to receive a significant monthly retainer as well as a success fee of 3% of the value of any contract the company wins.
What steps should Company A consider taking before hiring Consultant?
There are several factors here that might lead Company A to perform heightened FCPA-related due diligence prior to retaining Consultant: (1) the market (high-risk country); (2) the size and significance of the deal to the company; (3) the company’s first time use of this particular consultant; (4) the consultant’s strong ties to political and government leaders; (5) the success fee structure of the contract; and (6) the vaguely-defined services to be provided. In order to minimize the likelihood of incurring FCPA liability, Company A should carefully vet Consultant and his role in the transaction, including close scrutiny of the relationship between Consultant and any Ministry of Immigration officials or other government officials. Although there is nothing inherently illegal about contracting with a third party that has close connections to politicians and government officials to perform legitimate services on a transaction, this type of relationship can be susceptible to corruption. Among other things, Company A may consider conducting due diligence on Consultant, including background
(cont'd)
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