x Abu Dhabi, UAEMonday 21 August 2017

Anti-corruption laws benefit all the players

Globalisation has forced companies to ensure that their commercial ethical practices adhere to the standards everywhere they work.

Illustration by Lee McGorie / The National
Illustration by Lee McGorie / The National

Globalisation has delivered unprecedented wealth and opportunity for businesses the world over. But globalisation means that increasingly international firms are expected to take direct responsibility for the extension of ethical commercial practices in each of the jurisdictions in which they are engaged.

An obvious danger in an evermore connected global business community is the failure of baseline ethical considerations to keep pace with the wider phenomenon. The US Foreign Corrupt Practices Act (FCPA) and the UK Bribery Act (UKBA) are serious pieces of legislation designed to keep businesses honest and level the playing field in favour of competition, which in turn benefits the consumer with the best products and services at the best price.

The FCPA and the UKBA are not mere aspirations; they embody an important policy and aggressive enforcement. International companies who maintain only a casual adherence to their tenants can - and have - paid a heavy price.

For United States and United Kingdom firms, proselytising anti-corruption rules and regulations is an act of necessary prudence: the severity and reach of penalties can be material to even the largest companies. BAE Systems, Halliburton and KBR, among others, have all recently learnt at their own cost just how painful the consequences of attracting enforcement attention can be.

In 2008, Siemens AG and several of its subsidiaries paid the heaviest penalty to date - more than US$800 million (Dh2.93 billion) in penalties, disgorgement and interest to US authorities and a further $800 million in fines to the office of the prosecutor general in Munich - making the combined cost in penalties paid by Siemens for corrupt practices $1.6bn.

Of course, the regulations are no less relevant to foreign companies that find themselves in the crosshairs of the FCPA. In 2011, the FCPA was deployed by the Securities and Exchange Commission (SEC) to begin investigating Wall Street's dealings with sovereign wealth funds around the world.

And in 2012, Japanese firm Marubeni Corporation was forced to accept a $54.6m penalty for FCPA violations based on its actions as an agent to a US linked joint venture.

Other global institutions have also leveraged these laws as part of their own efforts to combat corruption.

Public international financial institutions, led by the World Bank, have taken steps to combat corruption in their project lending, while the Organization for Economic Cooperation and Development (OECD) in 1997 drafted the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which has since been ratified by 40 countries around the world. These measures taken by the global community serve to raise the importance of anti-corruption in every corner of the globe.

An increasing number of non-US and UK-domiciled firms have become believers and champions of these tenets because anti-corruption (and particularly FCPA) compliance is good for organisations in the Middle East, Africa and Asia, which are seeking to expand their commercial horizons via relationships with US businesses.

In China, there are 188 FCPA-accredited firms, up from just 35 in 2006. Accredited firms in Brazil number 74, up from just seven, and in India the number of accredited firms is 102.

There is a trend and momentum here.

No one thinks that any law, no matter how progressive or honourable, will erase bribery or shrive the world of mendacity, greed and corruption. But the benefits can be vivid: an increasingly level playing field and greater confidence, internal and external, in those states making genuine and demonstrable moves towards combating bribery.

The wider implications are particularly important to those nations seeking foreign direct investment and the UAE is an excellent case in point. The Emirates have long sought an upgrade from "frontier" to "emerging market status" and adopting the highest international standards in commercial ethics would significantly enhance their case.

Typically, an upgrade to emerging market status opens the door to huge volumes of foreign direct investment from a wide range of geographies and market sectors.

Dubai is now regarded in most quarters as a leading regional business hub and a haven of stability in the Middle East. And the Dubai international Financial Centre courts have emerged as the leading English-language commercial courts in the Middle East.

Given the legal imperative and the fast emerging corporate and institutional desire for greater transparency, we can hope that a new era of international compliance and integrated legal platforms lie just around the corner. This is an instance where prudence and virtue both point in the same direction - and promise similar rewards.

 

Tim Cullen is the head of global disputes and Sheila Shadmand is Dubai partner-in-charge for the law firm Jones Day