Anti-Bribery Compliance: Seeking a Written Opinion

In terms of anti-bribery compliance, reference to conducting due diligence is essentially mandated by virtually all of the official guidance issued by most governments and non-governmental organizations.  Indeed, a wealth of providers in the form of consultants as well as investigative, accounting and law firms make their services readily available to assist in the due diligence process.  Aside from the critical importance of engaging providers well respected for their competence and especially for their integrity, how one works with due diligence providers can also become critical in ensuring that the due diligence will be effective.

From the perspective of global anti-bribery compliance, it has long been held that records need to be kept of what due diligence is conducted.  Often misunderstood is the purpose of the record-keeping requirement.  In and of itself, no intrinsic value exists for making a record of the due diligence.  In theory, the due diligence may be just as reliable whether in written or verbal form.  But if questions were to later arise as to what sort of due diligence was performed, what may appear to be self-serving representations are never as effective as a contemporaneous record of the nature and extent of due diligence.  Contemporaneous records are also crucial when memories fade or key staff depart.

But another unstated aspect of requiring a written record is its vital role in heightening the care in which the due diligence is performed and opinions rendered.  People are simply much more careful in what they put in a written record as opposed to a casual conversation or even a more formal oral report.  This is particularly so if there is even a slight prospect of the due diligence becoming relevant at some point in time.  Unquestionably, in the context of anti-bribery investigations, any record of due diligence is apt to be of import many years after the due diligence is conducted.

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