Global Anti-Bribery Compliance: More on the Clean Companies Act

In terms of anti-bribery compliance, companies engaged in international business need to keep in mind Brazil’s Clean Companies Act. Fortunately, the conceptual contours of the Clean Companies Act are very similar to the anti-bribery provisions of the FCPA and the UK Bribery Act. Yet there are differences.

The Clean Companies Act does not extend to private bribery like the UK Bribery Act. Even though the Clean Companies Act resembles the UK Bribery Act in making companies strictly liable, no complete defense is provided like that under Section 7 of the UK Bribery Act for an effective compliance program.

Unlike the Clean Companies Act and UK Bribery Act, proof of intent is required for a violation of the anti-bribery provisions of the FCPA. Yet, as a practical matter, the “sum of the parts” criteria for establishing liability for an entity under U.S. law results in a very low threshold for liability not much more, in many cases, than strict liability. However, like the Clean Companies Act, the FCPA provides significant credit for an effective compliance program in reducing the amount of a fine for a violation. And like the UK Bribery Act, the Clean Companies Act provides no exception for facilitation payments as does the FCPA.

Despite the distinctions, conceptually all three laws give special attention and, indeed, credit for an effective compliance program. Almost identical factors are taken into account in evaluating the effectiveness of a compliance program. This is significant in simplifying the process of designing an effective global anti-bribery compliance program. Many if not most of the same factors may be taken into consideration.

Despite the convergence of common factors in evaluating the effectiveness of compliance programs, special attention needs to be given to local considerations. This not only relates to the precise terms of a compliance policy, it also relates to evaluating risk in the local setting, filling legal gaps in applicable laws, and providing adequate resources. Adequate resources should include providing staff that is sensitive to the local environment and making available the necessary tools to conduct adequate due diligence in the local setting.

Unquestionably, the convergence of concepts associated with many anti-bribery laws is a fortuitous development in simplifying the process of developing global anti-bribery compliance programs. Despite the homogenization of many of the key considerations, the need for sensitivity to the factors associated with each local situation should always be kept in mind. It is critical to the ultimate effectiveness of a compliance program.

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