Multinationals, Distributors, and the FCPA
When doing business overseas, you’ll want to stay on the right side of the Foreign Corruption Practices Act. Just ask LATAM Airlines. The Chilean company is paying $22 million in fines for allegedly bribing Argentinian officials. While LATAM’s violation appears to be overt, companies can violate the FCPA in subtler ways.
Two US agencies enforce the FCPA: the Department of Justice and the Securities and Exchange Commission. FCPA violations include, but are not limited to, kickbacks, bribes, or any other perks given to foreign government officials for purposes of favorably influencing them on behalf of one’s enterprise.
And if a multinational exporter is relying on a distribution partnership, FCPA compliance can get a whole lot dicier.
Many multinationals assume that their overseas distributors will bear the liability for their own FCPA violations. After all, headquarters has no way of knowing what their foreign partner is up to, do they? Why should they be liable for actions that they have not sanctioned? Unfortunately for the company, FCPA officials probably won’t sympathize with this rationale. With enforcement on the rise, companies must inform themselves about how the FCPA views culpability, Specifically, corporate culpability for violations performed by a third party, the distributor.
FCPA enforcement officers won’t so much ask whether the multinational was party to their distributor’s violation. Rather, they’ll inquire about proactive training and monitoring policies: did the multinational have reasonably sufficient procedures in place to preempt said violation? In short, did the company do everything it possibly could to stay abreast of its distributor’s actions and prevent corruption?
Ultimately, the question comes down to this: what anti-corruption protocols and procedures did the multinational have in place; how were employees, partners, and affiliates trained in those; and what form of policing and oversight did the company have to ensure compliance? In the event of an FCPA investigation, the SEC and DOJ will look closely at the company’s policies and enforcement and measure these against industry standards and expectations. If they find the multinational’s measures to be adequate, they’ll be more likely to absolve it and assume that the company had the misfortune of partnering with an especially wily and corrupt partner. Nobody, after all, can be expected to catch 100 percent of shady dealings 100 percent of the time.
Naturally, every multinational prefers to stay in the clear and never incur an FCPA investigation. The following actions will help them do so.
Develop a comprehensive anti-corruption policy, independent of other company policies. Don’t just bury a paragraph or two about corruption in the main policies and procedures document.
Require every distributor to read and commit, in writing, to that anti-corruption policy. Don’t do business with them if they refuse.
Adapt your screening, monitoring, and enforcement for the country’s corruption ranking. For example, distributors in Denmark—rated the “cleanest” country in the world by Transparency International’s Corruption Perceptions Index—warrant less scrutiny than those in, say, the highly corrupt Myanmar. And don’t worry: scrutinizing your Uzbek partners more closely than those in France does not equate to accusing them of malfeasance. Rather, it’s simple math. A country with a high corruption index will exert a disproportionate pull on your overseas colleagues, multiplying the probability of their human frailty caving to massive corruption incentives. By instituting a rigorous monitoring and enforcement protocol, you’re helping balance the equation by offering a corruption disincentive.
Pay special attention to profit margins and insist on distributor transparency. You’ll have some idea of what should be normal. Shady dealings are difficult to mask—they often signal themselves by profit abnormalities. For example, a distributor may sell to government officials at a greater-than-normal discount, which would reveal itself as a lower profit margin. Kiera S. Gans recommends establishing acceptable discounts upfront. Any departure from these should require review and approval from headquarters.
Audit distributor financials on a regular schedule. If this sounds like a whole lot of work, well, it is. But hey, it’s not as bad as prison. Or millions of dollars in fines. View these precautionary actions like any other duty: part of the cost of doing business.
Jacob Andra is Senior Industry analyst for US Translation Company, a language services firm that helps US multinationals adapt to overseas markets.