Women, Influence & Power in Law Conference

September 18-19, 2014

The Capital HiltonWashington, DC

The Global Anti-Corruption Architecture

Glenn T. Ware

Principal, International Anti-Corruption and Program Integrity

PwC

September 18, 2014

Global Anti-Corruption Architecture

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Key milestones in the modern anti-corruption movement

Council of Europe Civil Law Convention enters into force

Council of Europe Criminal Law Convention on Corruption

enters into force

Business pressure to “level the playing field”

1980sUS Foreign Corrupt Practices Act (FCPA)

1977

Transparency International founded

1993

Inter-American Convention Against

Corruption enters into force

1997

African Union Convention on Preventing and Combating Corruption enters into force

United Nations Convention Against Corruption enters into force

OECD Anti-Bribery Convention enters into force

1999

2002

2003

2005

2006

• 1977 - U.S. implemented anti-corruption legislation to outlaw bribery in business transactions overseas (Foreign Corrupt Practice Act – FCPA)

• U.S. businesses pressured United States government to globalize the anti-corruption regulatory regime in order to “level the playing field”

• 1993 - Founding of Transparency International; put pressure on international community to create global treaty architecture

• Mid 1990’s - Normative movement; proliferation of international instruments and declarations “outlawing” corruption.

Global Anti-Corruption Architecture

• Signed and ratified by states

• Require state action to implement

International Treaties

• Created by individual states

• Often benchmarked against international standards

Domestic Law

• Civil and criminal enforcement

• Subject to state jurisdiction limits

Enforcement

• Five major MDBs• Very active in anti-

corruption enforcement

• Administrative sanctions process

• Enforcement not tied to state jurisdictions

MultilateralDevelopment

Banks

Enforcement

International Treaty Enforcement Multilateral Development Bank Enforcement

How do anti-corruption treaties impact business?

Emerging Multi-polar Enforcement Landscape

United StatesForeign Corrupt Practices Act (FCPA)

BrazilClean Companies Act

AustraliaCriminal Code Act Section 70

AustriaAustrian Criminal Code Section 304-305

United KingdomU.K. Bribery Act (UKBA)

CanadaCorruption of Foreign Public Officials Act

GermanyCriminal Code Sections 299 and 331EU Corruption Act International Corruption Act

FinlandPenal Code Chapter 9,16, 40

SwitzerlandSwiss Penal Code Section 322

ChileCriminal Code 248, 251bisLegal Entities Criminal Liability Law

Emerging Multi-polar Enforcement Landscape

African Development Bank

Asian Development Bank

European Bank for Reconstruction and Development

Inter-American Development Bank

The World Bank

Global Enforcement

Rise of Non-State Regulators

Emerging Multi-polar Enforcement LandscapeMultilateral Development Banks – Assessing Your Risk

02Do you know how to navigate the MDB sanctions process?

The MDB sanctions process is distinct from national law, and is unique to the MDBs themselves. This presents unique challenges for companies caught in the cross-hairs. Notable process features include (1) broad definitions of sanctionable practices, (2) permissive consideration of evidence, and (3) lower standards of proof characteristic of an administrative adjudicative process.

03Are you aware of potential criminal and civil liability?

MDB Risk

Do you know whether your project is MDB-financed?

MDBs operate across the full range of emerging markets – precisely the markets leading companies are targeting for growth. MDBs are particularly active in financing infrastructure, energy & mining, water & sanitation, health, transportation, and agriculture projects.

04How would cross-debarment

impact your global operations?

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MDB investigators routinely collaborate with and refer cases to national law enforcement authorities, which can lead to concurrent investigations and overlapping civil and criminal liability.

Debarment by one MDB may result in automatic debarment by other MDBs. US and foreign government agencies are also increasingly respecting MDB debarments in their own procurement processes.

Emerging Multi-polar Enforcement LandscapeTransboundary Cooperation

Global Anti-Corruptionand Anti-Bribery

September 18, 2014

Mara V.J. SennMara_Senn@aporter.com

202-942-6448

Global Anti-Corruption Basics

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How Investigations Begin: Whistleblowers

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I WANT YOUTO BLOW THE WHISTLE ON

WASTE, FRAUD AND ABUSE BY U.S. GOVERNMENT CONTRACTORS!

Thinking of blowing the whistle?

Whistle blowers identify wrongdoings and stand up for their belief in what is right, despite enormous

personal sacrifice and career risk. If you are thinking of blowing the whistle on your employer or another

company, Contact our experienced lawyers today!

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Pharma: Johnson & Johnson, Merck & Co. Inc, Eli Lilly and Co., Pfizer

Technology: IBM, HP, Maxwell Technologies, Comverse Technology, OracleOil & Gas:

Panalpina, Bonny Island,

Hercules Offshore, Inc.

How Investigations Begin: Industry Sweeps

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How Investigations Begin: Press

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How Investigations Begin: Other Countries

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Increasing foreign anti-corruption laws

Increased coordination between national enforcement agencies• This can take the form of document collection, access

to witnesses and unofficial dividing of fines and credit in global settlements

The number of formal foreign bribery actions by countries other than the US increased by 71% between 2012 and 2013.

China became the leading enforcer against their own government officials.

Multi-Jurisdictional Investigations

Carbon Copy Prosecutions

Total: Paid $398 million to U.S. government and France brought criminal charges (ultimately acquitted)

Ralph Lauren: Paid $1.6 million to U.S. Government and Argentina brought prosecution

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Document Collection & Review

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Witness Interviews

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Data privacy Translations (in

interviews and any forms)

Cultural pitfalls Labor requirements

1919

7/24/2014

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Cross-Border IssuesSecurity risksProtect

whistleblowersPreserve the

privilegeOther local legal

issues

Resolving the Casewith the Regulators

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Thank You If you have any questions, please contact:

Mara V.J. Senn ● Mara.Senn@aporter.com ● 202.942.6448

Mara V.J. SennWashington, D.C.

Beyond the FCPA

Michele E. Beasley

General Counsel, Chief Compliance Officer, Secretary and Senior Vice President

First Wind

September 18, 2014

The US FCPA is only one of many anti-corruption regimes worldwide that apply to US companies:• UK Anti-Bribery Act• World Bank and other international trade/finance agencies’ anti-corruption rules• Internal laws of countries where US companies do business

Some legal systems prohibit only bribery of government officials; other rules apply more broadlyCrafting compliance policies that cause your company to simultaneously comply with all applicable laws and rules is critical• Statement of principles• Broad prohibition of improper acts• Don’t just restate or summarize the FCPA• Do think about aligning procedures to actual risks and corruption incentives, by

jurisdiction

Beyond the FCPA

Anti-Corruption for a Small Planet