Prevention of Corruption through Corporate Compliance-Programs

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Transcription:

Prevention of Corruption through Corporate Compliance-Programs 1 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

I. Compliance and Compliance-Programs 2 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

Definition of Compliance Compliance Adherence to legal regulations. Criminal Compliance Adherence to criminal regulations. Anti-Corruption Compliance Adherence to anti-corruption regulations. Compliance-Program Measures to secure the adherence to legal regulations. 3 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

Context Corporate Social Responsibility Corporate Governance Legal Compliance 4 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

Compliance-Program Aim: Effective Compliance-Program Minimising chances to commit crimes Maximising incentives to follow legal rules 5 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

Compliance-Program Elements Basis: Analyse Define Structure Risk analysis and risk assessment Defining rules and values (Compliance Rules) Setting up a compliance structure Implementation: Communicate Promote Organise Communicating and teaching Compliance Rules Actively promoting compliance Organisational measure for everyday workflows Enforcement/Advancement: React Sanction Improve Defining reactions in cases of infringements Defining sanctions Constant evaluation and improvement 6 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

What is new? Companies are actively undertaking substantive measures to prevent crimes Recognition of specific group dynamics within the company Empirical evidence that complex measures influence behavior within the company Potential for Regulated Self-Regulation Group dynamics make it difficult to regulate the company by classic legislation (e.g. prohibitions) Compliance can be used to structure and incite selfregulation 7 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

II. Regulative Potential of Compliance 8 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

Levels of regulation Company 1. Self-Regulation 2. Requirements by other private institutions 3. Informal support by the state 4. Honoring compliance 5. Sanctioning the lack of compliance State 6. Excluding responsibility 7. General Obligation to implement Compliance-Programs 9 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

1. Self-Regulation Common in the USA, more and more in Europe Motives: - Reputation and Advertisement - Fear of financial consequences - Ethical thinking 10 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

2. Requirements by other private institutions Examples U.S. Stock Markets (NYSE, ) Industry Associations (Pharmaceutical Industry, Banks, ) Commonness USA (frequent) Europe (increasing) 11 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

3. Informal support by the state Support of companies by agencies: - Advice - Model compliance programs 12 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

4. Honoring Compliance Criminal law Refraining from initiating criminal prosecution (e.g. U.S. Federal Prosecution Guidelines) Closing of proceedings by the investigating authority (e.g. U.S. Federal Prosecution Guidelines) Reduction of sentence (U.S. Federal Sentencing Guidelines) Administrative Measures Reduction of official oversight 13 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

5. Sanctioning the lack of compliance Determination of Sanctions Non-compliance as an aggravating circumstance (e.g. U.S. Federal Sentencing Guidelines) Compliance-Sentence Obligation to implement compliance measures/ a compliance-program (e.g. U.S. Federal Sentencing Guidelines) 14 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

6. Excluding responsibility Ineffective compliance-program as a precondition for responsibility Effective compliance-program excludes responsibility UK Bribery Act UK Corporate Manslaugther Act US Foreign Corrupt Practices Act 15 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

7. General Obligation to implement Compliance-Programs ( ) Existing are sector obligations to implement a compliance program that are accompanied by a sanction. (e.g. German securities trading act prevention of insider trading) 16 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

III. Possible regulative Approach 17 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

Three step approach First Defining standard compliance-measures Clarity and legal security how to prevent corruption Corporate Compliance Codex/Anti-Corruption Codex Integrate Compliance into the Corporate Governance Development Support for setting up private sector standards Second Setting up rules for sentencing Enhance compliance efforts by honoring good compliance Sentencing Guidelines gives legal clarity Third Creating specific compliance sentences Possibility to reform non-compliant companies 18 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

Second choice approaches Excluding responsibility Substantial ressources for investigating the case in order to collect evidence Because of in dubio pro reo risk of losing the case But: greatest incentive to create compliance General obligation to implement compliance programs Substantive infringement of companies rights Requires great administrative resources to control 19 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

Thank you for your attention! Dr. Marc Engelhart Head of Section for Business and Economic Criminal Law Max-Planck-Institute for foreign and international criminal law Günterstalstr. 73 D-79100 Freiburg i.br. Tel.: +49 (761) 7081-248 Fax: +49 (761) 7081-294 m.engelhart@mpicc.de 20 Dr. Marc Engelhart - Prevention of Corruption - Warsaw 13.07.2012

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