The End is Nigh for Facilitation Payments – Get Ahead of the Breeze

Last summer, an article was published in the University of Pennsylvania, Journal of Business Law, entitled “The OECD’s Call for an End to the ‘Corrosive’ Facilitation Payments and the International Focus on the Facilitation Payments Exception under the Foreign Corrupt Practices Act”. It was authored by Jon Jordan, Senior Investigations Counsel, in the Foreign Corrupt Practices Act (FCPA) Unit of the Securities and Exchange Commission (SEC). In this article, Jordan reviews, at length, the creation of the facilitation payment exception to the FCPA and the international criticism of the US position by the Organization of Economic Co-operation and Development (OECD), Transparency International, the World Economic Forum and TRACE International. The article also contains a discussion of the hidden costs to US companies which still allow facilitation payments under their company compliance regimes. I found this article to be an excellent review of the issue of facilitation payments and a useful guide to the compliance practitioner on how to navigate this knotty problem.

Costs of Facilitation Payments
1. The Bull’s Eye
Jordan notes that the cost of making facilitation payments is often higher than simply the (purportedly) small dollar amount. He believes that once a company starts down the road of making such payments, it may well lead “to higher costs imposed on those companies that choose to engage in that type of activity.” He quotes Alexandra Wrage, President of TRACE International, that having a corporate policy of allowing facilitation payments is like “putting a bull’s eye on your company’s forehead” as the payment of facilitation payments sets “a permissive tone, which leads to more and greater demands.”
2. Books and Records Issues
A second reason detailed by Jordan is the hidden intra-corporate transaction costs in making facilitation payments. There are a “complex matrix of domestic and foreign anti-bribery laws that companies must navigate when making facilitation payments, and steering through that matrix can be a compliance nightmare and a costly legal undertaking.” The clearest example of this situation is the UK Bribery Act, which has no exception for facilitation payments. If your company has a UK subsidiary, or any employees who are UK citizens, you must carve out an exclusion for them from your facilitation payment exception under your FCPA compliance policy. Got that? So not only must you have an entire carve out in your compliance protocols, your internal accounting system, which is required under the FCPA to record internal controls, you must also make sure that no UK citizen or person otherwise under the jurisdiction of the UK Bribery Act, makes such a claim for reimbursement under your company policy.
 3. Customers
The same is true for large UK based multi-national companies with which your company might transact business. The most obvious example in the energy arena is BP, which not only bans facilitation payments, but requires that any company which provides services for them ban facilitation payments made while doing work for or performing services on BP’s behalf. So think through how you would train your employees on how to properly make and record facilitation payments under your FCPA compliance policy with the HUGE EXCEPTION of when they might be performing some work under the 5 year Master Services Agreement with BP. It’s an administrative nightmare.
Is it Legal to Bribe?
Jordan also brings up the issue that there is not any country in which facilitation payments to public officials of that country are permitted under the written law of the recipient’s country. Accordingly, even if a particular facilitation payment qualifies for an exception of the FCPA, it, nevertheless, is likely to constitute a violation of local law – as well as under anti-bribery laws of other countries that also might apply simultaneously – and thus exposes the payer, his employer and/or related parties to prosecution in one or more jurisdictions. While enforcement to date in this area has been limited increased global attention to corruption makes future action more likely. Countries that are eager to be seen as combating corruption are prosecuting the payment of small bribes with greater frequency. Remember the hellish example of UK citizen Bill Smith, who was sentenced to two years imprisonment in an Afghanistan prison for making a ‘facilitation payment’ to get his company’s vehicles out of a Kabul impoundment lot. Apparently, even Afghanistan will fight the corruption of its own government officials, particularly if the fight involves a foreigner.
You Don’t Need a Weatherman
Jordan concludes by stating, “The facilitation payments exception has become a dinosaur remnant of a bygone era…” He advises US companies to get ahead of this issue and ban such payments in their company compliance programs now. This is sound advice. I would, however, add one additional reason for such advice, which is foretold in the intro paragraph to this article.
Who does the author work for and where does he work? Let’s recap: The SEC in the FCPA Unit. The article clearly states, “The Securities and Exchange Commission, as a matter of policy, disclaims responsibility for any private publication or statement of its employees…and do not necessarily reflect the views of the Commission…” Did I mention who the author works for and where he works? You don’t need a weatherman to know which way the wind blows and the direction of that breeze you feel at your back about now is clearly running against allowing the facilitation payments to continue.


© Thomas R. Fox, 2012

Australia Considering Criminalizing Facilitation Payments

Customer pays for a beer in central Sydney 21/06/2011 REUTERS/Tim Wimborne

Lawyers have welcomed the government's plans to bolster Australia's anti-bribery laws and outlaw facilitation payments, saying the changes would bring the country into line with international best practice and address the "weakest link" in the existing legislation.

In a consultation paper (PDF) launched yesterday the government outlined its proposals to remove the facilitation payments defence from s70.4 of the Criminal Code Act 1995. The reforms would align Australia's laws more closely with the UK's Bribery Act 2010, which took effect in July and has banned facilitation payments for UK-linked companies.

Unlike the UK and U.S., Australia does not have dedicated anti-bribery legislation. In Australia the act of bribing a foreign public official is proscribed under Division 70 of the Criminal Code. The legislation ensures that a person can be prosecuted under Australian law for "offering or providing a bribe to foreign public officials for the purpose of obtaining business or an undue business advantage". Like the UK and U.S. legislation it has extra-territorial effect and covers activities anywhere in the world.

In addition, Divisions 141 and 142 of the Criminal Code make it an offence to bribe a Commonwealth public official or for a Commonwealth public official to solicit a bribe.

Breaches of the legislation carry a maximum penalty of 10 years in prison and A$1.1 million fines for individuals and A$11m million in fines, or three times the benefit gained, for corporations. If the value of benefits obtained through bribery cannot be determined, the penalty for a company is 10 percent of annual turnover in cases where that amounts to more than A$1.1 million.

Brendan O'Connor, the minister for home affairs and justice, said there were strongly divergent views in Australia about the case for an exemption for facilitation payments. He said the purpose of the consultation was to get feedback from stakeholders about the merits or otherwise of removing the facilitation defence.

"I hear anecdotal evidence about the need to retain the defence because it is a reality of doing business, especially in the Asia-Pacific region," O'Connor said at the launch of the consultation paper. "I also note that, internationally, the defence of facilitation payments is gradually being removed from the criminal laws of our international trading partners. Maintaining the defence in Australia could appear incongruous with the aid and assistance message we send out in the region."

O'Connor said the government was aware that banning facilitation payments might put Australian businesses at a competitive disadvantage or in a "difficult situation" if payments were solicited under duress. It might also create an uneven playing field between large and smaller businesses. On the other hand, he said, it might also create greater consistency with the laws of other countries, promote regulatory certainty for businesses that operate across jurisdictions and help to reduce corruption globally. The government was also mindful that international developments, such as the commencement of the UK Bribery Act in July, had turned the tide against the facilitation payments defence.

Industry support

Within the legal and consulting sectors, there has been strong support for the government's decision to review the facilitation payments defence and other aspects of Australia's anti-bribery statutes.

Rob Locke, partner at Ernst & Young in Sydney, said that the latest consultation was further evidence of the global trend to take a harder line on facilitation payments. He said: "It is a timely and healthy initiative and a further sign that there is a global rethink about facilitation payments."

Christopher Keane, special counsel at Middletons, described the facilitation payment defence as the "weakest link" in Australia's foreign bribery legislation. He said the justifications for the defence were "tenuous at best" and said that businesses would be unwise to rely on this as part of their anti-bribery compliance frameworks.

"It is a very limited and complicated defence and is frequently misunderstood, thus exposing Australian businesses operating offshore to criminal liability in circumstances where they might genuinely believe they are acting lawfully," Keane said.

In essence, Keane said that there were three fundamental problems with the facilitation payments defence. "First, the defence is inconsistent with Australia's domestic laws. Secondly, the defence is inconsistent with the extra-territorial UK Bribery Act and the domestic laws of many of Australia's major trading partners. Thirdly, the most effective way for companies to avoid criminal liability arising under any anti-bribery legislation is to encourage a strong culture of compliance, whereas the facilitation payment defence is at the top of a very slippery slope that leads to serious criminal conduct," Keane said.

In view of all these issues, Keane said he was advising clients that Australian businesses should eliminate facilitation payments regardless of the outcome of the current consultation. "The safest approach is to proceed on the basis that there is no such thing as a facilitation payment defence," he said.

Extra-territorial impact

For Australian businesses that have links to the UK, the decision on proscribing facilitation payments has already been made. According to consultants at KPMG, Australian businesses with operations in the UK have already had to take a harder line on facilitation payments. These firms, as well as Australian subsidiaries of UK parent companies, are not only subject to the Australian anti-bribery laws but also to the requirements of the UK Bribery Act.

David Luijerink, partner at KPMG Forensic, said that those businesses with links to the UK could already be found guilty of an offence under the UK laws if they were unable to prove they had adequate procedures in place to prevent people from committing bribery. This applied not only to the activities of their employees but also to third-party associates, such as business partners, agents and contractors.

Luijerink noted: "It is important to note that the Act also covers the actions of non-UK nationals or residents. This means that an Australian business that transacts with the UK could very well find itself facing charges over illegal conduct by a non-British employee or a contractor, or for failing to prevent a third-party supplier from paying or receiving a bribe, even if the misconduct took place in another country."

He added that, under the new legislative landscape, firms would not be able to claim they were ignorant of facilitation payments that were happening under their watch. "Businesses need to cultivate a deeper culture of compliance and be able to demonstrate that they have sufficient risk management practices embedded in the business to mitigate bribery risks. Citing corporate ignorance in this instance will offer no protection from the long reach of the Act," Luijerink said.

A recent report from KPMG, entitled the "Global Anti-Bribery and Corruption Survey 2011", revealed that one third of businesses in the UK and U.S. did not assess the risk of bribery or corruption. Of those with written anti-bribery and corruption policies, 40 percent did not distribute them to relevant third parties and 60 percent did not require third-party representatives to participate in anti-bribery compliance training.

The survey also found that most anti-bribery and corruption compliance programs lacked sufficient depth and breadth to offset any regulatory risk effectively.

Luijerink said: "The potential costs of involvement in bribery and corruption are not limited to economic costs but also extend to reputational harm, and businesses need to weigh up whether not complying with the Act is a risk they can afford."

Broader discussion

Consultants and lawyers have said that, in Australia, the reform of the anti-bribery laws will have to take into account all of these major international developments. As well as the facilitation payments issue, the review of Divisions 70 and 141 of the Criminal Code will also explore a number of related issues regarding the anti-bribery statutes. Under the existing laws, courts must disregard the value of a benefit when determining whether a benefit was "legitimately due". This is to ensure that bribery is an offence irrespective of the value of the benefit.

As an example, the consultation paper stated that there might be situations where a person would be legitimately due a moderate fee in return for providing a particular service connected with obtaining business. "However, in the same situation a very large fee may be highly improper and not legitimately due to the public official or other person," it stated.

The government is considering whether to change para 70.2(2)(b) to clarify that bribery is an offence irrespective of the value of the benefit offered or given.

The consultation has also looked at changing the laws to ensure that prosecutions can proceed where a recipient of a bribe cannot be identified. To achieve this, the laws would need to be changed so that it is not necessary to prove an intention to influence a particular official. This will ensure that the law covers circumstances where a bribe is paid but the particular official to whom the bribe was destined cannot be identified.

The consultation paper stated: "For example, it may be possible to prove a person offered or provided a bribe to an agency in charge of granting public infrastructure contracts, but not possible to identify whether the payment is destined for the official directly responsible for granting contracts or another official who will direct their staff to grant a certain contract."

The final significant reform would be to change the laws so that "dishonesty" was not a requirement of the domestic bribery offence. Under the foreign bribery laws (Division 70) there is an obligation to demonstrate that bribery was committed intentionally but not necessarily "dishonestly". The government has proposed to align the offences in Divisions 141 and 142 with Division 70 by removing the "dishonesty" requirement from these offences, which would assist with the harmonisation of domestic and foreign bribery offences.

The paper noted that "the requirement in Divisions 141 and 142 to prove dishonesty as well as bribery could make it more difficult to prosecute crimes of domestic corruption".

O'Connor said that stakeholders should make the most of the opportunity to improve Australia's anti-bribery laws and to bring them more closely into line with those in other jurisdictions.

"While we consider that we have strong laws to combat foreign bribery, we want to examine our legislation in light of international developments and hear from you about the reality of doing business beyond our shores," he said.

Responses to the consultation paper (PDF) need to be lodged by December 15, 2011.

(A$1 = US$1.01)