Facilitation payments are often indistinguishable from bribes. As bribery and corruption becomes a key concern for firms doing business globally, issues such as facilitation payments and their recording can pose a challenge to companies. As the global legislation around bribery and corruption continues to increase, with many countries developing their own set of rules and regulations on what is and is not acceptable, companies need to ensure they are compliant with these laws in the markets they operate.
The most prominent of these legislations are the US Foreign Corrupt Practices Act, 1977 (FCPA) and the UK Bribery Act, 2010 (pdf,148KB). Both laws attempt to define the scope of what constitutes a bribe and the corresponding penalties, maintenance of books and records and jurisdiction of applicability.
While the FCPA covers public bribery offences, the UK Bribery Act covers commercial bribery as well as bribery of public officials and prohibits facilitation payments. Additionally, the jurisdiction of the UK Bribery Act is extra-territorial providing UK authorities with the ability to pursue an act of bribery by British nationals, companies, or residents irrespective of place of offence.
The Prevention of Corruption (Amendment) Act, 2018 (Amendment Act), which came into effect on 26 July 2018, seeks to bring the Indian anti-corruption legal framework in conformity with current international practices laid down by the United Nations Convention Against Corruption. The Amendment Act has introduced the concept of corporate liability, covering all categories of corporate organizations incorporated in India or carrying out business in India. With the Amendment Act coming into effect, corporate organizations will not be able to take the plea that such bribery and corruption instances are individual offences, except when it can prove that it had adequate compliance procedures and safeguards in place to prevent its associated persons from such conduct.
These multiple stringent legislations, in addition to the existing Indian Prevention of Corruption Act, can make it difficult for companies to monitor their compliance and frame a suitable firm-wide anti-bribery and corruption policy. For companies planning to expand their business scope to cover new geographies, this would entail additional scrutiny of their business practices as well as those of their business partners and associates.
We have helped companies review their existing policies around bribery and corruption and devise a process for continuous monitoring. We also help companies with due diligence on past cases of non-compliance and assist firms in their reporting process. Today businesses accumulate vast quantities of electronic data created in a variety of formats - databases, word processing documents, spreadsheets, images, videos, and internet content. Electronic discovery (eDiscovery) - We can provide investigation and litigation support through data analysis and data management. Our forensic technology is able to identify, collect, manage and disclose all relevant evidential material irrespective of format, location and size.
We have organized ethical dilemma workshops for leading organizations in India covering issues around US FCPA and the UK Bribery Act, which had helped firms clearly communicate this message to all employees.
Our Anti-bribery and corruption (ABC) consultancy service includes:
- ABC risk assessment
- Development of anti-bribery and corruption policies and procedures, compliance programs and designing internal controls review and compliance monitoring
- Development of training modules and conduct training on ABC compliances
- Development of e-learning training modules on ABC compliances
- Pre-acquisition and post-acquisition due diligence
- On-going monitoring and technical support to corporates with ABC compliances.
- Investigation of alleged/suspected instances of non-compliances by individuals and corporates.