Compliance professionals, internal counsel and external counsel face a daunting and increasingly complex landscape when they hear the initial report of potential corruption stemming from their international operations. More recently, this has become the case irrespective both of the location of the potential misconduct and whether it appears on first view to reflect a regulatory or potential criminal issue. The initial decision-making which once might only have contemplated the potential oversight of a very small number of regulatory or enforcement authorities must now include an array of interested parties that can bridge government regulatory, enforcement and criminal bodies located in multiple nations and on multiple continents. This obligatory and expansive thinking is tested as well by the dramatic improvement in cross-border investigative and enforcement cooperation. The Foreign Corrupt Practices Act (FCPA) and anti-bribery space is an excellent place to review this new world order.
A quick survey of senior compliance officers and internal and external counsel results in a quite uniform acknowledgment of the way things have changed. In the anti-bribery environment, until quite recently, the potential regulatory and enforcement concerns that presented when issues developed in multi-national operations were quite narrow, and they informed the internal reviews and investigations accordingly. Without putting too fine a spin on the matter, the discussion of the potential consequences faced by a company with potential anti-bribery exposure was fundamentally U.S.-centric. The dispositive question was often whether or not the potential misconduct was likely to fall under the umbrella of FCPA enforcement. Would U.S. authorities be interested in pursuing this matter? Would they find out about this matter? There were not many other concerns that mattered. Whether the site of the potential misconduct was in the European, Asian, South American or African sector, the substantial likelihood was that home authorities would have little interest in the matter, and even if they did it was likely an interest that would often frustrate and impede efforts by the Department of Justice or the Securities and Exchange Commission to investigate the matter. Cooperative enforcement was unlikely. This has changed.