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By Arghemar Perez
SCCE Certified Compliance & Ethics Professional
Ethical Alliance Certified Member
Credited to Practice Law in Venezuela
Would my anti-bribery compliance plan pass the scrutiny test under an investigation? A legitimate question indeed, that actually goes beyond the management of past, existing or potential anti-bribery matters and embodies corporate compliance as a whole; although organizations with cross-border operations face more of a hurdle race.
Considering the implications at a corporate and individual level of an anti-bribery settlement or ruling as a result of a governmental investigation, effectiveness of your anti- bribery compliance program seems to be key to cross-border business sustainability. Meeting self-disclosure, cooperation and remediation requirements could earn your organization a mitigation credit when under the DOJ’s April 2016 pilot program –a reduction of up to 50% below the low end of the applicable fine range and no monitor appointment, maybe-. Nevertheless, from a preventive perspective, regulators-enforcers appear to be aiming at deterring individuals and companies from engaging in wrongdoing by demanding the implementation of a strong anti-corruption compliance program vis-à- vis abstract rules.
Corporate values are fundamental pillars in a solid institutional structure, as are policies and procedures. But, how could an organization go beyond the “compliant standard” and become a dynamic promoter of exemplary leadership, especially when it comes to global trading? It seems to require changes in corporate behavior by developing the skills and abilities to read your business surroundings and model the way toward ethical conduct, hence preventing missteps
As idealistic as it might sound, subject-matter experts present clients with a quite diversified array of solutions, depending on the organization’s size, locations and markets where it operates. Nevertheless, it is the vigorous observation of the development of human responses and subsequent transfer of information that guarantees the effectiveness of your anti-bribery compliance program.
There are several players involved in this dynamic: Board, C-Suite, management, staff and stakeholders on one end; competitors, demand, regulators, enforcers and cultural barriers on the other; and they all fall within the monitoring scope, as a regular exercise in your organization to prevent the attempt or materialization of an act of bribery. Toward this goal, focusing on factors evaluated by prosecutors when determining treatment given to a “corporate-individual target,” as well as past prosecutions or investigations, are instruments that could anticipate undesirable business conduct. Normally these two elements are considered when designing a scrutiny or trial defense. The “innovation” at this point, refers to molding both factors into knowledge that could be taught, learned and embraced by your organization –with emphasis on sensitive areas such as international distribution or licensing, overseas production, sales and marketing- as the healthy way to do business everywhere you go.
Simple understanding and pragmatic handling of concepts such as nature and seriousness of an offense; risk of harm to the public; knowledge and intent; precedent –news- and remedial actions taken; importance of measuring compliance program effectiveness and its implications; are part of a monitoring-training duet in an organization in order to avoid or succeed at the scrutiny race.
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