Preventing Corporate Corruption: The Anti-Bribery Compliance Model

526 Pages·2014·4.56 MB·English

by  Stefano Manacorda

Preventing Corporate Corruption
Stefano Manacorda • Francesco Centonze
Gabrio Forti
Editors
Preventing Corporate
Corruption
The Anti-Bribery Compliance Model
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1 3
Editors
Stefano Manacorda Gabrio Forti
Dipartimento di Giurisprudenza Facoltà di Giurisprudenza
Seconda Universita di Napoli Università Cattolica del Sacro Cuore
Santa Maria Capua Vetere Milan
Italy Italy
Francesco Centonze
Facoltà di Economia e Giurisprudenza
Università Cattolica del Sacro Cuore
Piacenza
Italy
ISBN 978-3-319-04479-8 ISBN 978-3-319-04480-4 (eBook)
DOI 10.1007/978-3-319-04480-4
Springer Cham Heidelberg New York Dordrecht London
Library of Congress Control Number: 2014935960
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Preface
This book is the result of an international research project on the topic of bribery
and the private sector, and specifically on the role of compliance programs. The
project began in January 2012 under the auspices of the United Nations Office on
Drugs and Crime (UNODC), and involved the participation of an international team
of prominent academic institutions, working under the coordination of the Interna-
tional Scientific and Professional Advisory Council of the United Nations (ISPAC),
and in cooperation with Eni.
The ambitious goal for the project was to design and make available a unique
Anti-Bribery Compliance Model (an “ABC Model”), based on the results of a seri-
ous effort to integrate international best practice in anti-corruption policy with a
new set of maximum standards drawn from a combination of empirical observation,
concrete business experience, theoretical research and comparative analysis of legal
systems and case law. The ABC Model published in this book has therefore been de-
signed to serve as the most advanced set of guidelines for multinational companies
in complying with anti-corruption laws, while also comprising a new benchmark for
use by national legislators—endorsed by international institutions, and consistent
with the United Nations Convention against Corruption (UNCAC)—in assessing
the liability of corporations in the event of corruption.
The aim of this research is to develop and promote new preventive and enforce-
ment strategies against corruption in the context of partnerships between the public
and private sectors. To this end, four academic institutions were selected based on
their scientific expertise and record of research in the field of corporate criminal
liability: Equipe Internormativités dans l’espace pénal, Collège de France, Paris;
Centro Studi “Federico Stella” sulla Giustizia penale e la Politica criminale, Uni-
versità Cattolica del Sacro Cuore di Milano in partnership with LUISS in Rome;
the School of Criminology and Criminal Justice, Northeastern University, Boston;
and Instituto de Derecho penal Europeo e Internacional, Universidad de Castilla-la-
Mancha. Eni then offered its support for this work, through making a contribution
to the study based on its expertise in the field of anti-bribery practices.
This challenging research project has offered the unique opportunity for es-
tablishing a wider discussion forum focused on the development of innovative
v
vi Preface
instruments to combat bribery and corruption, whose results were set forth during
the Conference on International Strategies Against Corruption held in Courmayeur
from the 14th to the 16th of December 2012. The primary outcomes of this lively
debate are presented in this volume. Indeed, the present work is divided in five main
parts. The first section offers a comprehensive overview of the juridical issues and
recent approaches that have led to the conception of the “ABC Model”. Without
purporting to be exhaustive, it is sufficient here to highlight some of the contribu-
tions included therein. The opening article written by Stefano Manacorda illustrates
the aims of the research conducted to draft the ABC model and proposes a complete
depiction of the initiatives that have been established at international level to fight
corruption. Furthermore, Francesco Centonze analyses the model of public-private
partnerships in the prevention of this criminal phenomenon presenting an extensive
illustration of a “hybrid governance” system and examining the valuable role that
incentives play in the field. From the same perspective, the contribution of Adán
Nieto Martín concerns the functions that internal investigations, whistle-blowing
and cooperation serve in the criminal proceedings carried out to prosecute wrong-
doers for perpetrating bribery or corruption. The second and the third part of this
work present respectively the ABC model, at which the ensuing passages of this
preface are extensively dedicated, and an analysis of the practical functioning of
compliance programs with a focus on the oil and gas sector. The reasons behind
the selection of such business sector are clearly illustrated in the article written by
Stefania Giavazzi, where it is highlighted that it represents one of the most signifi-
cant as well as at high risk sectors in relation to corruption. The fourth section of
the volume offers a detailed outline of the international legal framework currently
adopted in this field that, as it is underlined in the work of Juliette Tricot, presents
a two-faced nature. On one hand, the number and diversity of norms, actions and
initiatives at global or regional levels are commonly presented as a success story;
whilst, on the other, the international legal framework on corruption reveals a com-
plex and evolving picture and several doubts have arisen on its effectiveness. The
articles contained in this part of the book concern inter alia, the anti-bribery self-
regulation instruments adopted by corporations, the function assumed in this field
by the G20 Anti-Corruption Working Group, the input into the discussion made by
the B20 Task Groups on Anti-Corruption and Transparency and the important role
assumed by the World Bank and the International Chamber of Commerce in the
fight against corruption. Finally, the last section of the volume is entirely dedicated
to the presentation of the contributions focused on the legal instruments developed
in several domestic jurisdictions in order to combat such a criminal phenomenon.
In particular, it is offers an analysis of the US Foreign Corrupt Practices Act 1977,
the UK Bribery Act 2010, and the legal framework currently implemented in Italy,
Swizerland, France, Canada, Australia and China. Coming back to ABC model,
which represents the final output of the research project, it can be defined as an
exhaustive, innovative model, drawing on a combination of practical experience
and theoretical research, with direct implications for corporate compliance practice.
From a practical perspective, the ABC Model stands out as a forward-looking
anti-bribery compliance instrument, incorporating not only a compendium of the
Preface vii
most widely recognized examples of best practice, but also a set of new tools, origi-
nal solutions and clear stances on some of the most controversial issues in the anti-
corruption compliance debate. Its most innovative features include: unambiguous
regulation of facilitation payments, political contributions and private commercial
bribery; the integration of an ad hoc, dedicated Anti-Corruption Unit within the
company structure; the provision of compulsory principles and rules for corporate
governance, organizational structures, and decision-making processes; detailed pro-
visions and procedures for the implementation and monitoring of the program; and
a clear categorization for violations of the program and the concomitant disciplinary
sanctions. All of these will contribute to making the ABC Model one new leading
standard in anti-corruption compliance for years to come and an adaptable norma-
tive framework as well, being ready to adjust to the changing conditions of a quite
complex regulative and economic environment as well as to the inputs which grow
from an ever flourishing theoretical debate.
However advanced and ingenious any compliance model may be devised, and
vitally needed for the prevention of corruption in the private sector and in society
as a whole, it must account for the sheer reality that any actor, private or public,
is no more living in a Newtonian era, namely expecting to solve or alleviate the
problem of corruption in the corporate world single-acting solely on the political,
administrative, economic, financial or market environments. Due to the intertwined
causal chains and feedbacks which make corruption so complex a phenomenon
to deal with at any level, the most suitable strategy must target it through a mul-
tiple approach, where private and public sectors act and regulate according to the
firm awareness that any lack of integrity, any patent and undue inequality and any
conflict of interest growing in one of them is bound to permanently damage the
other. As Michael Sandel (Justice 2009) puts it, our societies suffer from a dearth
of attention to inequality (and, we could also say, to one of its most powerful pre-
paratory steps: conflict of interest) and one very important reason to worry about
this neglectfulness is that the yawning of a huge gap between rich and poor (as
confirmed for various European countries by recent data developed from the Gini
coefficient, used as a measure of inequality of income or wealth) undermines the
solidarity required by democratic citizenship, bringing to the secession by the privi-
leged from public institutions and facilities, and thus to a kind of cultural and human
desertification of those institutions that once gathered people together and served
as informal schools of civic virtue. In few words: in the (not so) long run, it brings
to what has been aptly called the hollowing out of the public realm and, we could
add, the hollowing out of any persistent rule of law, as applied to public as well as
private actors.
Inequality and conflict of interest being the most powerful breeding grounds
of corruption (besides being conversely its further damaging outcomes), targeting
them at any level, in the public as well as in the private sector, should be the pri-
mary way to break the vicious circles of the ever expanding corrupt flow. A serious
crack-down on conflicts of interest appears to be the primary step towards preven-
tion of State capture, the most noxious kind of corruption from which a large part of
administrative, political and private corruptions ‘trickle down’. Albeit difficult, this
viii Preface
is not a mission impossible, and in any case it is an inescapable one for any anticor-
ruption policy bent on achieving good integrity standards and not merely interested
in exhibiting its self-righteousness or in selling junk reforms to easily distracted (or
contented) audiences.
In this direction the ABC Model sounds as a quite promising step, being bent on
preventing, among many other generative forces of corruption, corporate conflicts
of interest (B.2.2) and thus countering the blurring of any divide between public and
private sectors, which marks the extreme evolutionary stage of illicit practices—
where the same distinction of roles between briber and bribee is dissolved—and the
almost irreversible planting of the ‘cancer’ of corruption in the pith and marrow of
society.
Due to the unique methodology adopted for this volume, the ABC Model is im-
mediately applicable, anywhere, and by any company operating at the multinational
level—since it stems from the business experience of a prominent multinational
corporation and takes advantage of the empirical studies and surveys conducted
during the preliminary stage of the project.
At the same time, the ABC Model is an instrument with global reach and mul-
tiple potential applications: on one hand, there is scope for implementing its policies
in companies from all nations and in all industries, since those policies are based on
a comprehensive and transversal risk analysis, are consistent with the UNCAC and
are endorsed by UNODC; in addition, the model is intended to serve as a tool of har-
monization among States, by establishing a new standard for the legal requirements
and judicial criteria in assessing companies’ liability in cases of bribery.
The project would not have been possible without the support of many institu-
tions and the dedication of some extraordinary people. As editors, we wish to ex-
press our warm gratitude to Dimitri Vlassis, chief of the Corruption and Economic
Crime Branch of UNODC, who initially discussed this initiative with Professor
Stefano Manacorda, as well as to Camilla Beria di Argentine, Director General of
CNPDS/ISPAC, who enthusiastically agreed to undertake this work. The research
program, and the present publication, would have never come into being without
the invaluable support of Johanna Caputi-Mallmann at the secretariat of CNPDS/
ISPAC, who assisted the whole group with great patience and competence. We also
owe sincere thanks to Ben Young and his team at Babel Editing for their careful
work in reviewing the manuscript and to Costantino Grasso for his assistance in
reviewing the whole manuscript. We also wish to thank Eni for its material support,
which in our view itself represents an example of best practice in public–private
partnerships in the area of anti-corruption policies. The Courmayeur Mont Blanc
Foundation and its chairman, Lodovico Passerin d’Entrèves, also deserve special
thanks for having hosted and sponsored the International Conference on Interna-
tional Strategies Against Corruption: Public–Private Partnership and Criminal
Policy.
Last, but not least, we express our appreciation to Springer, our publisher.
19th November 2013 Stefano Manacorda
Francesco Centonze
Gabrio Forti
Contents
Part I Moving Towards the ABC Model: A General Overview
1 T owards an Anti-Bribery Compliance Model: Methods and
Strategies for a “Hybrid Normativity” .................................................. 3
Stefano Manacorda
2 T he Universal Approach of the United Nations Convention
Against Corruption .................................................................................. 31
John Sandage
3 The Private Sector Role in the Fight Against Corruption .................... 35
Massimo Mantovani
4 Public–Private Partnerships and Agency Problems: The Use
of Incentives in Strategies to Combat Corruption ................................ 43
Francesco Centonze
5 Internal Investigations, Whistle-Blowing, and Cooperation:
The Struggle for Information in the Criminal Process ........................ 69
Adán Nieto Martín
6 Collective Action and Corruption ........................................................... 93
Mark Pieth
Part II The ABC Model
7 T he ABC Model: The General Framework for an Anti-
Bribery Compliance Program ................................................................. 111
Stefania Giavazzi, with the support of Francesca Cottone and
Michele De Rosa
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x Contents
8 The ABC Program: An Anti-Bribery Compliance Program
Recommended to Corporations Operating in a Multinational
Environment ............................................................................................. 125
Stefania Giavazzi, with the support of Francesca Cottone and
Michele De Rosa
Part III Background Analysis for the ABC Model: Compliance
Programs in Practice
9 The Anticorruption Compliance Program Benchmarking
Assessment in the Oil and Gas Industry: Methodology and
Achievements ............................................................................................ 181
Stefania Giavazzi
10 Empirical Features of International Bribery Practice:
Evidence from Foreign Corrupt Practices Act
Enforcement Actions ................................................................................ 201
Vincenzo Dell’Osso
Part IV The ABC Model and International Legal Framework:
Rules, Controls, and Sanctions
11 Corporate Anti-Bribery Self-Regulation and the
International Legal Framework ............................................................. 251
Juliette Tricot
12 An Anticorruption Ethics and Compliance Program for
Business: A Practical Guide..................................................................... 279
Dimitri Vlassis
13 The Role of the G20 and B20 in the Fight Against Corruption ........... 287
Paul Kett
14 Emerging Control of and Sanctions Against Corruption:
The International Chamber of Commerce ............................................ 295
François Vincke
15 Globalizing the Fight Against Corruption ............................................. 309
Stephen Zimmermann
16 The Fight Against Corruption: The World Bank
Debarment Policy ..................................................................................... 315
John R. Heilbrunn