Getting serious about anti-bribery measures….
Romania’s national anti-corruption strategy.
By Neil McGregor, Managing Partner of McGregor & Partners and Vice-Chairman of the BRCC
I am pleased to report that the BRCC is now being recognised as a voice in the debate about how the problems of bribery and corruption can be tackled effectively. The Ministry of Justice is to hold a round table discussion on 16 February 2016 on the national anti-corruption strategy and I will represent the BRCC at this meeting.
There is an old saying that to herd cats, you need to tilt the floor. This is what the UK has done with the corporate offence of failing to prevent bribery and we are now seeing the first two enforcements of these provisions by the UK’s Serious Fraud Office. This has seen a deferred prosecution agreement (the first in the UK) with a bank which self-reported itself, co-operated with the prosecutors and has agreed to pay substantial financial penalties, in addition to implementing enhanced anti-bribery measures as approved by the prosecutors. The other case has seen a guilty plea by another company and we are waiting to see what sentence will be passed on it by the court.
The application of serious financial penalties in the UK on companies which do not enforce proper anti-bribery procedures and standards on their “associates” in foreign countries (which can include employees, agents and business partners) is novel and is quite a contrast to the apparent emphasis in Romania on identifying and punishing individuals. A lot of interest has been expressed to me in how the UK’s approach works and I am looking forward to discussing this with the Ministry of Justice and other participants at tomorrow’s round table.
Although these approaches to tackling the problem of corruption may differ, they do not conflict with each other and can be seen as complementary. The message is that even if individuals are prepared to risk their liberty by breaking the Romanian laws on corruption, traffic of influence and so on, there should be absolutely no commercial incentive for the companies which they represent (however informal this representation may be) to permit this to happen. In fact, a study of the documents in the case involving the deferred prosecution agreement demonstrates that the British courts regard the offence of simply failing to prevent bribery as being serious enough to warrant the imposition of very substantial financial penalties, so companies should have every incentive to take active steps to ensure that bribery does not happen – even (and perhaps especially) in countries where some have seen it as a common or practical way of doing business.
Can companies reasonably be held responsible for the actions of others – particularly of individuals? I am sure that many of us have heard of the “rogue employee”. What I will be saying at tomorrow’s round table is that the British courts and prosecutors have clarified how far companies need to go in taking steps to prevent bribery. It is fair that there is a defence to companies that they put in place adequate procedures to prevent bribery (there can be no such thing as a 100% guarantee that it will not happen), but it is clear that these measures go much further than simply adopting a formalistic “tick the box, industry standard” approach. Perhaps we will see a similar approach in Romania in the future?