Stamping out foreign bribery and corruption was seemingly not a priority for the Trump administration, but last week’s launch of President Joe Biden’s strategy on countering corruption shows tackling corporate abuses overseas is firmly back on the U.S. agenda.
As such, European companies and executives should beware: The Foreign Corrupt Practices Act (FCPA) is likely to get a dusting off.
While Biden’s initiative is filled more with intent rather than specific detail of how and when the strategy will unfold and develop, it sends a clear message: The United States wants to knuckle down on countries and industry sectors where corruption risk is highest and enforcement is weakest.
Existing policies, programs, and initiatives will get more funding, and U.S. agencies will reach out to foreign counterparts—especially in countries with less-developed anti-corruption frameworks—to further transnational cooperation and information sharing. There will also be a broad attempt to embed cultural changes to tackle bribery.
“Anyone involved in monitoring or advising on bribery and corruption risks for U.K. or EU companies will need to ensure compliance is effective on the ground as well as on paper.”
John Binns, Partner, BCL Solicitors
In terms of specifics, the United States wants to make it harder to hide wealth in opaque corporate structures, as well as make it easier to recover assets. It also wants to tackle areas where economic crime is facilitated and the proceeds of crime are most likely to be laundered, including real estate and the services of professional advisers.
Legal experts believe the strategy should lead to a more developed and comprehensive global approach to tackling international bribery and corruption. They also believe European companies and their activities could come under greater scrutiny.
John Binns, partner at law firm BCL Solicitors, says the document reinforces the notion that “anyone involved in monitoring or advising on bribery and corruption risks for U.K. or EU companies will need to ensure compliance is effective on the ground as well as on paper.”
Thomas Cattee, head of white-collar crime at Gherson Solicitors, says the new, invigorated international coordinated focus “should cause fresh concerns for both U.K. individuals who are attempting to hide wealth across jurisdictions in complex structures and U.K. companies and executives with an international presence who might have acted in noncompliance with domestic and foreign bribery laws.”
Some experts believe Biden’s initiative could impact U.K. companies especially.
Julian Glass, senior managing director at FTI Consulting, says Biden’s aim to work internationally to enhance “clean corporate governance” around anti-corruption within a wider environmental, social, and governance (ESG) context “may impact companies in their U.K. reporting requirements on corporate decision-making, board makeup, and executive compensation.”
Meanwhile, U.S. focus on enablers or facilitators of bribery and corruption is likely to put a spotlight on the kinds of professional services industries the United Kingdom likes to promote, such as investment advisers, hedge funds, private equity firms, real estate agents, lawyers, and accountants. Such scrutiny could make clients wary of some of the more contentious services businesses in these areas offer (notably, tax advice).
More generally, European companies should expect U.S. authorities to take a deeper interest in their foreign operations and dealings with third parties, particularly in parts of the world where bribery and corruption are often deemed endemic.
Trevor Wiles, partner at consultancy Forensic Risk Alliance, believes the move to increase resources for U.S. law enforcement will mean greater capability to commence more investigations and go after more difficult targets, like overseas corporates.
“Companies should expect the FCPA to come into its element again.”
Chris Phillips, Head of Disputes and Investigations, Alvarez & Marsal
“Biden might start with companies with U.S. interests but then move toward companies that transact with the former—for example, a distributor to a U.S. listed company that does not have U.S. business but is connected to bribery allegations,” says Wiles. “How quickly these initiatives are implemented will depend on the willingness and resources of local law enforcement agencies to assist. The United States will need to use its diplomatic resources to ease the path with the relevant governments.”
He adds the move to increase cooperation with international enforcement agencies will improve U.S. authorities’ potential access to documents and data held overseas, while greater cooperation could also result in knowledge transfer and the upskilling of local law enforcement as they learn U.S. techniques.
Wiles also believes Biden’s plans “will likely involve an increase in sanctions enforcement,” which should prompt non-U.S. companies and executives “to pay closer attention to their sanctions risks, not just their anti-bribery and corruption risks.”
Chris Phillips, head of disputes and investigations at management consultancy Alvarez & Marsal, warns because the strategy is “far-reaching” it will not just put bribery and corruption under more intense scrutiny, but also areas where the impacts of economic crime and the proceeds of crime will be felt. Extra attention could be paid toward modern slavery and environmental damage (for example, bribing officials in developing countries to ignore or facilitate the dumping of toxic waste).
Phillips suggests companies should review and refresh their existing anti-bribery and corruption policies and controls, as well as carry out extended due diligence with third parties in high-risk areas or activities. He adds companies that transact in or deposit U.S. dollars might find banks sharing more information with U.S. authorities.
“Companies should expect the FCPA to come into its element again,” warns Phillips.
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