Annabel: In terms of what regulators want to see, we can look to the updated guidance from the SFO and DOJ this year; the SFO’s chapter on Evaluating Compliance Programs which was published at the start of this year, and the updated DOJ’s Evaluation of Corporate Compliance Programs in June 2020. Both have a focus on the continuous improvement of a company’s compliance programme through regular review.
Key updates include reminding companies that they should be able to demonstrate why their compliance programme has been set up in a certain way including whether they are adequately resourced especially with appropriately skilled and senior individuals who are able to raise issues through the right governance structures, how lessons learnt have been embedded through effective and periodic data driven risk assessments, the ongoing management of third party risk and procedures for comprehensive pre and post- acquisition due diligence. We cannot ignore these updates as a signal of what the prosecutors will be reviewing in much closer detail.
Mark: What was really quite interesting was the recent announcement from the World Bank’s enforcement arm, the INT [Integrity Vice Presidency], which in October signalled that during investigations the INT will be taking a closer look at a company’s compliance programme to evaluate whether what a company has on paper is actually embedded. The fact that this coincides with the updated DOJ’s guidance, mentioned by Annabel, as well as the SFO’s guidance, really demonstrates that prosecutors, regulators and other anti-corruption bodies are taking an increasingly consistent approach on the importance of having a robust compliance programme in place.
Annabel: I definitely agree with this Mark, it is just more evidence that companies face scrutiny from all angles with increased cooperation across borders meaning it is important to understand the different anti-corruption requirements of the countries in which you operate or have some form of footprint but also the development agencies with whom you may do business.