I am often asked whether the Foreign Corrupt Practices Act can be considered an effective piece of legislation if companies continue to be caught with their collective hands in the FCPA cookie jar or self-admit they have violated the law.
I often respond with the words of Dick Cassin, the founder of the FCPA Blog, who after almost 30 years of work in anti-corruption compliance says that he cannot determine whether there are fewer violations of the law, but there certainly is more compliance. I think Cassin’s response points to the strategic success of the FCPA. Moreover, companies that have more robust compliance program, even if only in response to the FCPA, are better run companies.
While several formulations specify the type of compliance program to implement, based on the FCPA Guidance’s Ten Hallmarks of an Effective Compliance Program; the Six Principles of Adequate Procedures under the U.K. Bribery Act; the OECD’s 13 Good Practices; or Baker and McKenzie’s Five Elements of an Effective Compliance Program—the key is to implement and follow whichever program you determine is best for your organization.
A recent Financial Times article reported on a study by the Cranfield School of Management, which identified five key concepts for any organization to employee around risk management. The concepts were “an ability to anticipate problems; adequate resources to respond to changing conditions; free flow of information right up to the board; capacity to respond quickly to an incident; and willingness to learn from experience.” I have long maintained that if you have a robust risk management program, your company can actually take more risk, as you have the capacity to manage that risk more effectively.
By taking these five steps or instituting a compliance program based on any of the formulations laid out above, your company can work to marry a culture of compliance to the behavior of your employee. If you can succeed at that union, you will move forward to have not only a more effective compliance program, but also go a long way towards reducing the chances of a FCPA violation going forward.