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Corporate Social Responsibility (IVOR nr. 77) 2010/5.5.2.1
5.5.2.1 Implementing anti-corruption policies (internal efforts)
Mr. T.E. Lambooy, datum 17-11-2010
- Datum
17-11-2010
- Auteur
Mr. T.E. Lambooy
- JCDI
JCDI:ADS365817:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
Statement by Ruth Steinholtz, General Counsel & Group Security Coordinator, Borealis AG, presentation at the Anti-Corruption Summit, 2008, supra note 10.
Statement by Lyn Cameron, Director Ethics, Internal Control Services, Cisco, presentation at the Anti-Corruption Summit 2008, supra note 10.
Statement by Paula Davis, Global Head of Client Services, SAI Global, presentation at the Anti-Corruption Summit 2008, supra note 10.
. Statement by Enrique Aznar, Deputy General Counsel & Chief Compliancy Officer, Tyco International, presentation at Anti-Corruption Summit, 2008, supra note 10.
Ruth V. Aguilera and Abhijeet K. Vadera, 'The dark side of authority: antecedents, mechanisms, and outcomes of organisational corruption', 77, 2008, in Journal of Business Ethics, pp. 431-449.
Statement by Edward Chong, Corporate Services Asia Regional Risk & Controls Manager, Intel, presentation at Anti-Corruption Summit 2008, supra note 10.
Statement by Davis 2008, supra note 138.
Statement by Neil Holt, Group Board Director, Halcrow Group, presentation at AntiCorruption Summit 2008.
Statement by Klaus Moosmayer, Compliance Operating Officer & Chief Counsel Compliancy & Investigations, Siemens AG, presentation at Anti-Corruption Summit, 2008, supra note 10.
Statement by Carole Mestre, Director of Ethics & Compliance EMEA, Dell. Presentation at Anti-Corruption Summit, 2008, supra note 10.
Statement by Aznar 2008, supra note 139.
Statement by Jeremy Bradshaw, Vice President of Segment & Function Compliance, BP, presentation at Anti-Corruption Summit 2008.
Statement by Chong 2008, supra note 141.
Statement by Thor Lovland, Director Global Supplier Due Diligence, Vetcogray/GE Oil & Gas, presentation at Anti-Corruption Summit 2008, supra note 10.
Statement by Aznar, supra note 139.
Statement by Moosmayer, supra note 144.
Statement by Mestre, supra note 145.
Statement by Jeremy Bradshaw, supra note 147.
Statement by John Davies, Head of Business Law, ACCA, presentation at the AntiCorruption Summit, 2008.
Statement by Bradshaw, supra note 147.
Statement by Mark Snyderman, Chief Ethics & Compliance Officer, The Coca-Cola Company, presentation at Anti-Corruption Summit, 2008, supra note 10.
Statement by Mestre, supra note 145.
Statement by Chong, supra note 141.
Statement by by Holt, supra note143).
Statement by Aznar, supra note 139.
E.g. KPMG Forensic Services and Daylight Forensic and Advisory LLC (Daylight).
Statement by Ellen Zimiles, Chief Executive Officer, Daylight Forensic & Advisory, presentation at Anti-Corruption Summit, 2008.
Statement by Snyderman, supra note156.
Statement by Litvack 2008, supra note 48.
Presentation by Aznar 2008, supra note139.
Presentation by Lovland 2008, supra note149.
CPI, supra note 16.
Values versus rules. Anti-corruption and compliance programmes seem to work better when they are value rather than rule-based. A value-based policy is flexible and can adapt to unexpected situations. It is easier for all of the stakeholders within a company to base their behaviour on values rather than by having to assess a code of conduct with a large number of rules. Values such as 'integrity,''excellence,' and 'accountability' are just some examples that can be used to identify a company's culture. Companies such as Borealis AG,1 Cisco Systems,2 SAI Global,3 and Tyco International4 have implemented a value-based compliance programme.
Tone at the top. Anti-corruption and compliance programmes should be driven by top management. Top management should be accountable for the effective implementation and efficiency of the anti-corruption policies company-wide. It will be clear that in-control statements as discussed in section 2 stimulate the top to take responsibility. However, 'tone at the top' also refers to creating an atmosphere where values outweigh greed.5 Companies such as Intel,6 SAI Global,7 Halcrow Group,8 Siemens (after the corruption scandals),9 Dell10 and Tyco International11 have implemented a ' tone at the top' anti-corruption programme.
Training. The anti-corruption training should be easy to understand and accessible for all company stakeholders. BP, for example,12 bases its anti-bribery training on the following core questions: what is bribery and corruption? Why should I (the employee) worry about it? How could I experience it? What should I do? It is important to make all of the stakeholders aware of the personal as well as the corporate consequences of corruption and of legal risks involved. Companies such as Intel13 and Vetcogray/GE Oil & Gas14 give specific training in certain FCPA and SOX regulations. Furthermore, monitoring and evaluating the effectiveness of the anti-corruption programme is indispensable to ensure the maintenance of an efficient programme. Compliance can be part of periodic personnel assessment. Companies such as Tyco International,15 Siemens,16 Dell17 and BP18 conduct periodical evaluations of employee awareness concerning their anti-corruption policies.
Risk assessment to develop the compliance programme and training. Conducting risk assessment provides a clear route map for developing a compliance programme and for determining training priorities. The level of exposure of staff to the risk of bribery will determine the intensity and specific needs of the training. The Association of Chartered Certified Accountants (ACCA) also recommends determining the risk exposure level as a first step to preparing an anti-corruption policy.19 Companies such as BP,20 the Coca-Cola Company,21 Dell,22 Intel,23 Halcrow Group,24 and Tyco International25 conducted risk reviews before implementing their compliance programmes. They regularly provide specific risk-focus training. There are several risk assessment methods. Companies such as the Coca-Cola Company, BP and Siemens, in some specific cases, conduct forensic audits in order to assess the risk of corruption. There are advisory firms that specialise in these kinds of audits.26 One of them is Daylight which conducted a comprehensive review of all known FCPA prosecutions since the passage of the Act in 1977, and identified the following corruption patterns:
prevalent use of intermediaries. Approximately 65 per cent of enforcement actions were triggered by improper payments made by intermediaries. These intermediaries included freight forwarding, accounting and law firms, consultants, brokers and distributors;
high-risk geographies are Kazakhstan, Nigeria, Brazil, China, Russia, India, South Korea and Mexico;
high-risk industries are oil, gas, defence, pharmaceuticals and telecommunications; and
approximately 35 per cent of bribes are paid by employees directly. Therefore, assessing employee risk ranking is an important element. Issues such as political exposure or the direct dealings of employees with foreign public officials may determine the risk ranking of employees.27
Red flags. The so-called 'red flags' are several factors that should warn companies of potentially improper payments. The existence of one or more of these factors could alert companies to the probability of an improper payment. Companies such as the Coca-Cola Company,28 F&C Management,29 Tyco International30 and Vetcogray/GE Oil & Gas31 make sure that their anti-corruption programme makes it clear to all stakeholders of the company how to identify red flags. The following are some red flag examples: (a) is the type and location of the business a high-risk industry or location? Normally, the first thing that companies do in order to identify red flags is to look at Transparency International's Country Corruption Perception Index;32 (b) complex, opaque ownership structures; and (c) suspect third party transactions.