On April 19, Transparency International Canada Inc. hosted its second annual Day of Dialogue featuring 12 roundtable discussions on current issues in anti-corruption policies and practices. Transparency International is part of an international coalition that monitors global corruption and provides education, information and training to the Canadian business community, the general public and government agencies to facilitate effective anti-corruption programs.
This year’s Day of Dialogue focused on current key topics, including the Niko Resources Ltd.prosecution and probation order, issues in creating and operating a compliance program, understanding corruption risks and impacts and compliance-based due diligence in mergers and acquisitions, among other items. As discussed in our post of August 10, 2011, the Niko prosecution signalled Canada’s ramp up of anti-corruption enforcement under the Corruption of Foreign Public Officials Act (the CFPOA). One of the key terms of the Niko plea agreement was the requirement to design and implement a compliance program to detect and deter CFPOA violations. The program was required to meet thirteen requirements, which mirrored the order from the probation order in U.S. v. Panalpina World Transport (Holding) Ltd. – a case where Panalpina, a Switzerland-based freight company admitted to paying over $27 million in bribes to foreign officials. The thirteen requirements for the corporate compliance program, consistent with the expectations of the CFPOA include:
- implementing a clearly articulated and visible corporate policy against violating anti-corruption laws;
- ensuring senior management provide strong, explicit, and visible support and commitment to its corporate policy against violations of its compliance program;
- developing and promulgate compliance standards and procedures designed to reduce the prospect of violations at all levels of the company and parties with which it deals;
- engaging in corruption risk assessment addressing the individual circumstances of the company and its interactions with other parties;
- reviewing and update anti-corruption compliance programs annually;
- designating one or more senior corporate executive(s) to manage the program;
- ensuring financial and accounting procedures to maintain internal control;
- communicating program to all relevant parties, including training and certification;
- facilitating compliance with the program, in an internal and external system that is responsive to needs for advice, guidance, confidentiality, and action;
- determining appropriate discipline to address violations, remedy harm, and prevent recurrences;
- implementing comprehensive due diligence and compliance measures for agents or business partners;
- enclude standard provisions in contracts to prevent violations of anti-corruption laws; and
- conduct periodic review, testing, and improvement of the compliance program.
These compliance program requirements were consistent themes throughout the Day of Dialogue as participants discussed the importance of companies’ transitioning from an approach to compliance based on a code of conduct and business ethics to a more comprehensive mandate of anti-corruption policies and practices. The complete report summarizing the discussion from the Day of Dialogue will be made available on the Transparency International website.