Bribery and Corruption: What’s the best approach?

On Feb. 17, Samsung empire’s heir Lee Jae-yong was arrested on corruption and bribery charges connected to a nationwide political scandal in South Korea. While this is unlikely to directly impact the global tech behemoth in day-to-day matters, it is important to investigate how firms and governments can work together more successfully to combat white collar crime and corruption.

An international affair
The fight against bribery and corruption has historically been led by the United States, the first country to implement tough legislation with the Foreign Corrupt Practices Act of 1977. The federal law was enacted to address accounting transparency requirements and to make bribery of foreign government officials illegal.

Europe is not far behind with a range of legislation designed to prosecute and punish corporate crime. Other emerging market governments are finally cracking down as well, holding both domestic and foreign businesses and their senior management, to account.

Tackling bribery and corruption requires prosecutors and regulators that are properly equipped to investigate and deal with complex factual and legal issues. It also requires a judiciary that is impartial and can operate without political interference.

The United Kingdom’s Bribery Act of 2010 is a good example of tough new legislation that regulators and prosecutors can rely upon when investigating such crimes. It has extra-territorial reach both for U.K. companies operating abroad and for overseas companies with a presence in the U.K. It also introduced a new strict liability offence for companies and partnerships of failing to prevent bribery.

The law is not enough
Unfortunately however, even the best legal framework in the world is insufficient on its own.

Companies need to understand exactly how to go about preventing unlawful behavior, particularly in new and distant markets that their headquarters may not clearly understand. Ultimately, the real responsibility and accountability remains with the business to ensure compliance.

Countries with robust criminal and anti-corruption laws might be able to prosecute those individuals or businesses that commit offences within or outside the jurisdiction but the problem will continue until international businesses rigorously apply universal global standards to tackle corruption across emerging markets.

It’s Still about the culture
In short, this issue is about corporate culture. The following are fundamental steps for fine-tuning your organization’s approach to corruption:

• Develop a culture through education, where turning a blind eye to unlawful activity is not an option. Staff should feel comfortable with speaking out if they see anything potentially suspicious. Anti-bribery and corruption training needs to be repeated and made relevant to the day-to-day scenarios employees at different levels might face.

• The tone must be set at the top. For instance it can be useful to educate your firm’s directors with formal governance training, such as from the Institute of Directors (IoD) in London. This level of top-level attention to corporate compliance programs, including training, should be the norm.

• Proper dialogue needs to be established with regulators—not just a one-way stream of new laws and compliance requirements. A regulator should seek the views of those it is regulating. This two-way approach really does work.

Risk Link Roundup

Link Roundup

Here are a few recent articles that highlight issues impacting the world of risk and insurance, including blogs and articles about FIFA corruption, whistleblower programs—both pro and con—and the supply chain in outer space.

Iran, Russia Reject Idea of Joint Oil Output Cuts with Saudi Arabia
Reuters: Oil-producing countries looked unlikely to reach a deal to lift languishing prices at a meeting on Friday after Iran, Iraq and Russia swiftly rejected a surprise proposal that appeared to have been floated by Saudi Arabia.

16 Additional FIFA Officials Indicted for Racketeering Conspiracy and Corruption
U.S. Department of Justice: A 92-count superseding indictment was unsealed earlier today in federal court in Brooklyn, New York, charging an additional 16 defendants with racketeering, wire fraud and money laundering conspiracies, among other offenses, in connection with their participation in a 24-year scheme to enrich themselves through the corruption of international soccer.

Are Whistleblower Reward Programs Really a Good Idea?
FCPA Blog: Since the start of the SEC whistleblower program in 2011, the agency has awarded $54 million to 22 whistleblowers “who provided the SEC with unique and useful information that contributed to a successful enforcement action.”

Yes, We Need Whistleblower Rewards
FCPA Blog: Congress could not have been any clearer in its statutory design. Nor the SEC any more outspoken in its revitalized approach to government enforcement. Whistleblower rewards work.

Supply Chain Challenges in Space Exploration
OPS Rules Blog: Space supply chains are low demand and highly schedule driven. This might seem to be in contrast to commercial supply chains, which deal with high volume and compressed lead times. But applying the principles governing the commercial fast paced supply chains to the space supply chain can make it more agile and cost efficient.

Risk Link Roundup

Link Roundup

Here are a few recent articles highlighting some interesting issues that impact the world of risk and insurance. Topics include the impact of the Paris attack on the stock market, the emergence of the world’s largest hotelier, a former Department of Defense director of operations charged with taking bribes, criminal charges in a huge cyberfraud ring and four business owners charged with workers compensation fraud.

Wall St. Rises as Little Impact Seen From Paris Attacks

Reuters: U.S. stocks were higher in early afternoon trading on Monday after a choppy start as investors absorbed the impact of Friday’s deadly attacks in Paris.

Marriott Becomes World’s Largest Hotelier, Buying Starwood

Associated Press: Hotel behemoth Marriott International is becoming even larger, taking over rival chain Starwood in a $12.2 billion deal that will catapult it to become the world’s largest hotelier by a wide margin.

Former DoD Contractor Pleads Guilty to Taking Bribes from UK Company

FCPA Blog: The former director of operations of a Department of Defense contractor in Washington, D.C. pleaded guilty to soliciting and receiving nearly $200,000 in kickbacks in return for steering U.S. government subcontracts to a U.K. company.

U.S. Charges Three in Huge Cyberfraud Targeting JPMorgan, Others

Reuters: U.S. prosecutors on Tuesday unveiled criminal charges against three men accused of running a sprawling computer hacking and fraud scheme that included a huge attack against JPMorgan Chase & Co and generated hundreds of millions of dollars of illegal profit.

4 New York Business Owners Charged in Workers’ Comp Fraud Sweep

Insurance Journal: The New York inspector general’s office announced the arrests of four New York state business owners on fraud and theft charges as part of an ongoing series of investigations into employers and employees who defraud the state workers’ compensation system.

New Approaches Needed for Effective Data Risk Management


Over time, the role of corporate legal departments has expanded to address the increasing risks in corporations—from increasing involvement in implementing corporate policies to leading employee training on procedures for managing electronic communications, social media, and bring your own device (BYOD) policies. This shift, however, is not enough to meet the challenges posed by an increasing range of risks proliferating within global organizations. Legal and compliance groups must also take the lead in finding new ways to leverage the power inherent in their data and address the challenges posed by massive data stores, information and network security challenges, as well as regulatory compliance requirements.

Failings of Traditional Strategies

In the past, organizations used straightforward, people-intensive methods to search for and remediate risk. For example, organizations instituted policies training, hoping that it would be sufficient to corral employee use of electronic communications, BYOD, and social media. Some may have formed working groups or intradepartmental committees designed to consider the implications of data privacy or information security for their businesses. Others rely on basic technology, such as keyword searches, that trigger electronic alerts when they find a hit in a document.

While these tools are still important to demonstrate compliance, they are insufficient alone to monitor for risk. Older technology falls short when it comes to handling unstructured data, such as e-mail. For example, discerning employees will be too cautious to use triggering keywords such as “donations” or “bribes” when referring to illicit activity. Keywords are also notoriously inaccurate: if over-inclusive, they may yield a stockpile of irrelevant information, while under-inclusive keywords could omit critical documents from discovery.

Trends Drive New Risk Management Approaches

Three recent trends—escalations in data volumes, increasing threats to data privacy and security, and heightened regulatory scrutiny—highlight the need for more intensive means to investigate risk in organizations.

1-Burgeoning Data Stores

With today’s hyperfocus on information, risk follows data. The more data sources organizations have, and the more locations for storage of data, the greater the legal exposure.

Email is perhaps the most insidious source of risk, as hackers may look to exploit unwitting employees who may open spoofed e-mails containing malware or viruses designed to attack the corporate network. Along with e-mail, employees also have more ways than ever to share confidential corporate data such as trade secrets with outsiders. Newer forms of unstructured data, such as social media and instant messaging, allow people to disperse troubling information even more rapidly than before.

As more organizations look for low-cost storage for their data reserves, they have turned to the cloud—yet another source of potential risk to data privacy. Cloud providers may be susceptible to the same hacker schemes as employees. Moreover, depending on the terms of their service-level agreements, they could employ lax security protocols, lack disaster-recovery plans, share data with other clients, or transfer data to third parties, all without notifying the data owner. Furthermore, depending on the location of the cloud storage, it may trigger the application of international laws that protect data privacy and prevent the processing or transfer of a corporation’s data.

2-Data Privacy and Security

Traditional approaches to risk management are poorly equipped to meet the demands imposed by today’s data privacy and security regulations, particularly when it comes to the need to protect personally identifiable information, protected health information, nonpublic information, trade secrets, and privileged data.

This is especially true for global organizations, which are likely to have information cross international borders and trigger other nations’ data privacy schemes. Many nations have adopted restrictive schemes designed to protect their citizens’ personal information, such as the European Union’s Data Protection Directive, which controls when and how organizations can collect, process, store, alter, retrieve, and transmit this personal data. Many nations in the Asia-Pacific region have also created data privacy regimes, including China, which has blocking statutes that forbid the cross-border transfer of documents that contain “state secrets” as well as confidential commercial information.

Domestically, organizations must worry about laws such as the Health Information Technology for Economic and Clinical Health (HITECH) Act, which extends the Health Insurance Portability and Accountability Act (HIPAA) to a covered entity’s third-party business associates. Under HIPAA’s Security Rule, organizations and their business associates must take reasonable measures to safeguard protected health information. Organizations must vigilantly monitor their data to ensure there are no gaps in security that would violate these rules.

3-Regulatory Enforcement

The nation’s regulatory framework is becoming more complex almost by the day. Regulations that supplement laws such as the Foreign Corrupt Practices Act (FCPA) and the International Traffic in Arms Regulations (ITAR) have generated new areas of vulnerability, particularly when it comes to third-party relationships.

For example, the current administration has taken the position that no FCPA infraction is too small to prosecute. Organizations that fail to take proactive measures to search for, disclose, and remediate misconduct are likely to face substantial penalties if a regulatory agency discovers misconduct. Traditional tools, such as internal audits, are not up to the task of detecting the malfeasance of internal fraudsters, who may mask their corrupt behavior with code words or other innuendo that make it difficult to discover using keywords. Unless more advanced tools are used, an organization’s best defense against fraud might be reliance on tipsters.

A similar approach is required to ensure compliance with ITAR. This law imposes stiff penalties, including millions in fines, against U.S. organizations that export “defense articles” without government authorization. “Articles” is defined so broadly that it covers technical, defense-related data in documents, blueprints, drawings, photographs, plans, or instructions. The Directorate of Defense Trade Controls, the U.S. agency that enforces ITAR, is likely to take a more lenient approach with companies that have implemented a rigorous compliance program and that voluntarily disclose and remediate any failures.

Data-Driven Tools

Risk professionals now have a number of advanced analytics tools at their disposal to counteract the additional risks that lurk in emerging forms of data. Linguistic analysis techniques can identify instances where employees use seemingly innocuous words or phrases to engage in subterfuge. Concept clustering is a tool that isolates subtle patterns within documents that seem dissimilar to the untrained—or undigitized—eye. These conceptual search tools can identify patterns in documents, based on keywords or chunks of text, and flag the documents that refer to items that might fall within ITAR’s purview. Data visualization tools can analyze relationships and look for troubling connections that might violate the FCPA, such as links between employees, vendors, and foreign officials. In addition, anomaly detection tools can scan records for irregularities, such as unusual recurring payments.

Counsel, risk and compliance professionals can also apply tools such as technology-assisted review (TAR) to prioritize documents for review based on the likelihood that they contain material of concern. Using TAR, experienced legal counsel code a seed set of documents for relevancy to the issue at hand. Once done, they feed these documents into a computer that is programmed to uncover the logical reasoning behind the lawyers’ coding decisions. Sophisticated algorithms then apply that logic across an entire document population. The process is iterative, so that ultimately the computer’s logic closely mirrors the lawyers’ coding decisions. Organizations can use TAR to limit the population of documents for review, thus expediting the data mining process.