Debevoise & Plimpton

Anti-corruption compliance in 2013: post-guidance trends and signals for the future

The publication in November 2012 of the Resource Guide to the US Foreign Corrupt Practices Act (FCPA), jointly released by the US Department of Justice and the US Securities and Exchange Commission (SEC), was followed by a mixed, but by no means insignificant, year in terms of the number of resolutions and size of recoveries, as well as new cases against individuals.

Although FCPA enforcement in 2013 was overshadowed in various ways by other types of enforcement actions against companies and individuals in an array of sectors, this hardly signifies a decline in anti-corruption challenges. Those challenges will likely continue long after enforcement arising out of specific historical events, such as the Deepwater Horizon oil spill and the financial crisis, abates. The embedded risks of corruption in a broad swath of the world’s markets unfortunately are likely to guarantee this and may even lead to new enforcement records.

Despite the value of the guidance in outlining general principles, anti-corruption compliance challenges are likely to continue as US enforcement against companies continues to result in negotiated settlements or infrequently disclosed declinations that provide only limited insights into what the US enforcement agencies find significant. Anti-corruption compliance will also continue to present increasingly complex problems as cross-border M&A activity recovers from the financial crisis and as other nations’ enforcement — as illustrated by China’s crackdown on corruption and passage of new laws in Brazil and Russia — becomes more active. It is entirely possible that frustration by business interests, the public, Congress and the federal judiciary with the existing system of ‘regulation by settlement’ could result in FCPA enforcement being swept up in a larger legislative reform effort or in targeted amendments to the FCPA…

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