Deputy Attorney General James Cole: Remarks at FCPA Conference, Nov 19, 2013

James ColeIn France and Germany, as late as the 1990s, bribes were not only legal, but they were also tax deductible. Yet, in the past 10 years, both of those nations have changed their laws and joined us in the fight against transnational corruption. Most of you are familiar with the Siemens resolution in 2008, which was the product of our cooperation with German authorities. And in just the past 6 months, we announced the first coordinated action by French and U.S. law enforcement in a major foreign bribery case, the Total investigation.  ### Read more

Customs – Business Dialogue, Rex Hotel, Nov 29, 2013, 08:00 – 12:00

Lê Mạnh Hà, Vice ChairmanA special dialogue to get updates on Vietnam’s “Customs – Business Partnership, 2013-2015,” Customs Administration and Business Facilitation in the amended Customs Law and in the TransPacific Partnership. In addition, ask questions, discuss current issues, future plans, and your experiences with Customs first-hand with Vietnam Customs Deputy Director General Vu Ngoc Anh, as well as local Customs officials from HCMC, Binh Duong, Dong Nai, the key manufacturing FDI provinces in the Southern Key Economic Region.

Vietnam Customs plans to emulate the U.S. Customs and Border Patrol’s “Custom – Trade Partnership,” and seeks regular dialogue with businesses. HCM City People’s Committee Vice Chairman Lê Mạnh Hà will lead the meeting and moderate the Q&A, organized by the HCM City Investment and Trade Promotion Center (ITPC), with AmCham’s support.

When: Fri, Nov 29, 08:00 – 12:00
Where: Rex Hotel

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SOEs ask for bribes from private sector firms: 12th Anti-Corruption Dialogue Roundtable Workshop

blog_vn_corruption Rats bribe a catSixty-eight percent of Vietnam’s private enterprises say they have to offer bribes to get contracts with state-owned enterprises.

Most of them consider corruption  the second biggest problem after the high cost of living, said Tran Duc Luong, deputy head of the Government’s Inspectorate.

The figure is mentioned in the results of a survey conducted by the Anti-Corruption Bureau under the Government’s Inspectorate. Read more, then give your feedback. Read more

Prime Minister’s Dialogue with Entrepreneurs – AmCham Statement, Oct 13-14, 2004

Herb Cochran, Executive Director, AmCham Vietnam

AmCham feels obliged to raise a delicate but critical issue, the issue of corruption, which is a widespread phenomenon that undermines good governance, erodes the rule of law, hampers economic growth and efforts for poverty reduction and distorts competitive conditions in business transactions. We will not remind participants here about the many recent cases, across many industry sectors, including agriculture, telecommunications, road construction, oil and gas, and most recently textiles and apparel.”

Comment by Prime Minister Phan Van Khai (Tiếng Việt – Vietnamese) (English translation)

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Vietnam firms aid corruption with unsolicited bribes

blog_vn_corruption Rats bribe a catSeventy-five percent of businesses in Vietnam pay bribes to  government agencies on their own volition in order to avoid being stuck in red tape, a World Bank specialist says. According a the survey conducted by the World Bank and the Government Inspectorate last December , businesses felt that corruption had gotten worse since 2005. Tax authorities received the largest amount bribes, followed by customs and transportation officials, the survey found. Read more

Join the Anti-corruption Survey

Transparency International 2012 Corruptions Perception Index (CPI)The Vietnam Business Forum is seeking input from companies to identify concerns about corruption, and practical solutions to tackle corruption. This survey will take no more than 10 minutes to complete and is completely anonymous. The survey does not ask for names of the individual completing the survey or that of the company.

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Mitigating FCPA exposure in international distribution relationships

Michael_E_Burke.jpgMitigating the risk of sanctions under the U.S. Foreign Corrupt Practices Act (FCPA) is a core concern in every international commercial transaction, including cross-border distribution relationships in the FDA-regulated industry sectors. The FCPA contains both anti-bribery and accounting provisions. The anti-bribery provisions prohibit U.S. persons and businesses, U.S. and foreign public companies listed on stock exchanges in the United States or which are required to file periodic reports with the Securities and Exchange Commission, and certain foreign persons and businesses acting while in the territory of the United States from making corrupt payments to foreign officials to obtain or retain business. The accounting provisions require issuers to make and keep accurate books and records and to devise and maintain an adequate system of internal accounting controls. The U.S. Department of Justice and the Securities and Exchange Commission share enforcement authority under the Act. This article will review briefly best practices to mitigate FCPA risk in international distribution relationships. Read more

GSK in China: A Game Changer in FCPA Compliance

GSK in China: A Game Changer in Compliance, by Thomas FoxHOUSTON, AUG. 22, 2013 — /PRNewswire/ — A new e-book published by attorney, author and Foreign Corrupt Practices Act (FCPA) expert Tom Fox is pulling back the curtain on this summer’s bribery accusations leveled by the Chinese government against pharmaceutical giant GlaxoSmithKline.

In “GSK in China: A Game Changer in Compliance,” Mr. Fox explores the many unusual elements of the case, in which company employees are accused of bribing Chinese doctors and other officials to encourage the use of Glaxo drugs.

“As bad as it seems, there are many lessons that compliance officers can draw from and use as teachable moments within their own companies,” Mr. Fox says. Read more

Nine Handy Safeguards: The 12 days of FCPA • Useful takeaways from the new FCPA Resource Guide (9)

breuer-meeting

The U.S. .Securities and Exchange Commission (“SEC”) and U.S. Department of Justice (“DOJ”) issued a long-delayed Foreign Corrupt Practices Act (“FCPA”) Resource Guide in November 2012. While the Guide was preceded by years of pressure to clarify the enforcement of the FCPA, it generally does little to break new ground as a matter of policy and is not legal precedent. The Guide functions best as a single-reference source of preexisting agency enforcement actions and opinion letters. In this regard, it is a useful resource for the long-held interpretations of the FCPA by the agencies tasked with enforcement and offers a single source for the ounce of prevention that may be worth a pound of cure. It is important that companies review the Guide to assess whether current compliance programs or measures will pass the watchful eye of the SEC or DOJ and for insight into how the agencies are likely to view future compliance issues and potential misconduct. With that in mind, one legal services firmed pulled together 12 important takeaways that can be drawn from the Guide. Read one per day or all at once.

The Ninth Day: Nine Handy Safeguards

Takeaway number nine is the nine safeguards that the Guide notes will help ensure payments are reasonable and bona fide. While payments to foreign officials are more likely to raise red flags, the Guide notes that payments “will not give rise to prosecution if they are (1) reasonable, (2) bona fide, and (3) directly related to (4) the promotion, demonstration, or explanation of products or services or the execution or performance of a contract.” The nine safeguards that a company can follow when considering whether a payment to a foreign official is appropriate or violates the FCPA are the following:

  • Do not select the particular officials who will participate in the party’s proposed trip or program or else select them based on predetermined, merit-based criteria.
  • Pay all costs directly to travel and lodging vendors and/or reimburse costs only upon presentation of a receipt.
  • Do not advance funds or pay for reimbursements in cash.
  • Ensure that any stipends are reasonable approximations of costs likely to be incurred and/or that expenses are limited to those that are necessary and reasonable.
  • Ensure the expenditures are transparent, both within the company and to the foreign government.
  • Do not condition payment of expenses on any action by the foreign official.
  • Obtain written confirmation that payment of the expenses is not contrary to local law.
  • Provide no additional compensation, stipends, or spending money beyond what is necessary to pay for actual expenses incurred.
  • Ensure that costs and expenses on behalf of the foreign officials will be accurately recorded in the company’s books and records.

Read more …

12 Days of FCPA: Useful Takeaways from the New Foreign Corrupt Practices Act Resource Guide

DOJ and SEC Resource Guide to the U.S. Foreign Corrupt Practices Act for more in-depth details on specific provisions.

12 Days of Christmas • to provide cultural background on why there are “12 Days of FCPA”

Eight Red Flags: The 12 days of FCPA • Useful takeaways from the new FCPA Resource Guide (8)

breuer-meeting

The U.S. .Securities and Exchange Commission (“SEC”) and U.S. Department of Justice (“DOJ”) issued a long-delayed Foreign Corrupt Practices Act (“FCPA”) Resource Guide in November 2012. While the Guide was preceded by years of pressure to clarify the enforcement of the FCPA, it generally does little to break new ground as a matter of policy and is not legal precedent. The Guide functions best as a single-reference source of preexisting agency enforcement actions and opinion letters. In this regard, it is a useful resource for the long-held interpretations of the FCPA by the agencies tasked with enforcement and offers a single source for the ounce of prevention that may be worth a pound of cure. It is important that companies review the Guide to assess whether current compliance programs or measures will pass the watchful eye of the SEC or DOJ and for insight into how the agencies are likely to view future compliance issues and potential misconduct. With that in mind, one legal services firmed pulled together 12 important takeaways that can be drawn from the Guide. Read one per day or all at once.

The Eighth Day: Eight Red Flags About (Third) Parties 

Takeaway number eight is the Guide’s eight red flags to spot when dealing with third parties. Liability under the FCPA exists where payments are made while knowing that all or a portion of such money or thing of value will be offered, given, or promised, directly or indirectly, to a foreign official. Needless to say, this can include payments made by third-party agents or business partners. What’s more, recent case law suggests that liability exists where there is “conscious avoidance” of whether a bribe will be paid or which particular foreign official it will go to. The eight red flags referenced in the Guide are the following:

  • excessive commissions to third-party agents or consultants;
  • unreasonably large discounts to third-party distributors;
  • third party “consulting agreements” that include only vaguely described services;
  • the third-party consultant is in a different line of business than that for which it has been engaged;
  • the third party is related to or closely associated with the foreign official;
  • the third party became part of the transaction at the express request or insistence of the foreign official;
  • the third party is merely a shell company incorporated in an offshore jurisdiction; and
  • the third party requests payment to offshore bank accounts.

Read more …

12 Days of FCPA: Useful Takeaways from the New Foreign Corrupt Practices Act Resource Guide

DOJ and SEC Resource Guide to the U.S. Foreign Corrupt Practices Act for more in-depth details on specific provisions.

12 Days of Christmas • to provide cultural background on why there are “12 Days of FCPA”