Facilitation Payments – Combating bribery in the frontline by Michelle Witton (www.mwethics.com)

– Combating bribery in the front line

Michelle Witton ( http://www.mwethics.com ) is a Lawyer and Corporate Ethics & Compliance Consultant, specializing in advising mining companies on Bribery Act 2010 and Competition Law Compliance. Former clients include Anglo American plc. Michelle can be contacted by mail@mwethics.com or on 0044 7950 932070

Facilitation payments are exempted as bribes from US’s Foreign Corrupt Practices Act (FCPA). However, under UK’s Bribery Act 2010 they are illegal. Though UK companies and organisations operating in the US have been required to have anti-bribery compliance in place since 1977, the UK Act’s stance on facilitation payments is new for UK companies and is an aspect of the Act about which businesses have many questions, on the eve of the Act’s introduction on the 1st July, 2011. This article outlines the Serious Fraud Office’s approach to facilitation payments post 1st July 2011 and surveys practical approaches which can be adopted by companies to combat facilitation payments.
Facilitation payments are unofficial payments made to public officials to secure or expedite the performance of a routine or necessary action – to which they are legally entitled. They are sometimes referred to as ‘speed’ or ‘grease’ payments. Situations in which facilitation payments may be demanded are for the issuing of visas, the speedy passage of goods through Customs and the connection of gas, electricity and water services.

Between a rock and a hard place
Facilitation payments are part of the daily reality of “doing business” in many countries, particularly those in the developing world. They represent a ‘second economy’. Getting perishable goods through Customs if often contingent on paying facilitation payments. UK companies are between “ a rock and hard place” faced with the business reality of having to pay facilitation payments and the new UK Bribery Act – for which there is no upper limit for fines for the Corporate Offence of “failing to prevent bribery”. How can these realities be reconciled?
The Government realises the significant challenges to business in combating and eradicating facilitation payments. Its March 2011 Guidance to the Act acknowledges,
“ The Government does, however, recognise the problems that commercial organisations face in some parts of the world and in certain sectors. The eradication of facilitation payments is recognised at the national and international level as a long term objective that will require economic and social progress and sustained commitment to the rule of law in those parts of the world where the problem is most prevalent. It will also require collaboration between international bodies, governments, the anti-bribery lobby, business representative bodies and sectoral organisations. Businesses themselves also have a role to play….through the selection of bribery prevention procedures…”

The Serious Fraud Office’s response
Prosecution under the Bribery Act 2010 is the domain of the Serious Fraud Office and the Director of Public Prosecutions. In prosecuting cases of facilitation payments, as other cases of bribery, prosecutors must satisfy two tests:
1. Whether there is enough evidence to secure a conviction
2. Whether prosecution is in the public interest.
The law firm, Pinsent Masons, has sought clarity from the SFO about the SFO’s approach to facilitation payments post 1st July 2011. The firm recently published an Advisory Note on the SFO’s response. It appears at http://thebriberyact.com/2011/06/21/facilitation-payments-sfo-endorse-sfo-thebriberyact.com-six-step-solution/ Richard Alderman, the Director of the SFO, has said,
“…I do not expect facilitation payments to end the moment the Bribery Act comes into force. What I do expect though is for corporate who do not yet have a zero tolerance approach to these payments, to commit themselves to such an approach and to work on how to eliminate these payments over a period of time.
I have also said that these corporate should come and talk to the SFO about these issues so that we can understand that their commitment is real. This also gives the corporate the opportunity to talk to us about the problems that they face in carrying on business in the areas in which they trade. It is important for us to know this in order to discuss with the corporate what is a sensible process.”

The Six Step Approach
The SFO have advised that, following the 1st July, when considering the activities of a company which continues to make small facilitation payments, the SFO look to see the following:
1. Whether the company has a clear issued policy on facilitation payments,
2. Whether written guidance is available to relevant employees as to the procedure they should follow when they are asked to make such payments,
3. Whether such procedures are being followed by employees,
4. If there is evidence that all such payments are being recorded by the company,
5. If there is evidence that proper action (collective or otherwise) is being taken to inform the appropriate authorities in the countries concerned that such payments are being demanded,
6. Whether the company is taking what practical steps it can to curtail the making of such payments.
If the answers to these questions are satisfactory, then the corporate should be shielded from prosecution.

Further, the March 2011 Government Guidance says, “it is recognised that there are circumstances in which individuals are left with no alternative but to make payments in order to prevent against loss of life, limb or liberty. The common law defence of duress is very likely to be available in such circumstances.” Duress is actual or threatened violence or imprisonment to force a person to do something against their will.

A company’s Anti-corruption Policy should advise employees not to pay facilitation payments. However, the safety and well-being of employees should be paramount to a company. The Policy should further advise that if payments are demanded in circumstances of duress where employees feel that their safety or liberty is threatened, they should make the payment and immediately report it to their Line Manager. The Guidance supports that facilitation payments made under duress will be availed the common law defence of duress.

Recording and reporting on facilitation payments
Facilitation payments should, if paid, be:
– Reported immediately to the Line Manager
– Recorded as facilitation payments( guarding against allegations of concealment)
– Each the subject of an individual report setting out:
i. the circumstances in which the payment took place (date, time, country, office )
ii. those involved in the interaction
iii. whether there was duress and its nature
iv. alternative steps to payment that were attempted
v. the sum paid
vi. to whom the payment was reported and when
vii. remedial steps which might be taken, for example, approaching foreign National or regional government to highlight instances of demands for facilitation payments or further training for employees.

Although initial instincts may be not to record facilitation payments or to enter them under a less specific heading, companies should facilitation payments “by their name” in order to:
– demonstrate to the SFO best endeavours in combating facilitation payments,
– guard against allegations of concealment and mis-reporting and
– be able to accurately record and respond to the incidence of payments.

Writing a report on each payment demonstrates a company’s commitment to concertedly and systematically working towards their elimination. Analysis may identify trend – whether facilitation payments are routinely demanded by particular offices and/or individuals. This information can then be the subject of approaches to foreign governments to highlight the reoccurring issue.

Combating facilitation payments
1. Closing down opportunity
Demands for facilitation payments are routinely conveyed in face-to-face communications. Therefore, an approach to circumventing demands for facilitation payments is analysing how technology or other approaches can be used to “stand in the space” currently inhabited by face-to-face communication – how the opportunity for their request can be closed down.
Communicating at arms-length it will lessen the likelihood of facilitation payments being requested. Businesses should examine whether there are other means of transacting their business – with more senior, different personnel and transferring a greater degree of business to online interactions – rather than personal interactions.
Facilitation payments may remain a challenge for personnel and goods passing through Customs. However, due to heightened concerns over airport security, more and more technologically advanced measures are being introduced for the passage and screening of people and goods through airports. This may “stand in the space” between Customs Officials and passengers passing and increasingly close down the opportunity for demands of facilitation payments.

2. Pre-planning
Pre-planning is another approach to closing down opportunity. Increasingly, companies working in countries where demands for facilitation payments are prevalent factor the likely demand and delays to the release of goods following its refusal into their project planning. Heavy machinery and piping is sent forward months in advance of need. Its “stock-piling” in ports, if facilitation payments are demanded and refused, creates logistical difficulties for ports and Customs such that the need for space and to be rid of the goods exceeds the need for the facilitation payment.

3. Training in effective communication and responding to demands for payments
Again, because requests for facilitation payments routinely arise in face-to-face communications it is important to consider how equipping employees with more effective inter-personal communication skills and specific responses to facilitation payments may assist.
Demands for facilitation payments understandably cause employees to feel awkward, shocked and vulnerable. Responding effectively to requests for facilitation payments is an important topic which should be covered in Anti-bribery Training, preferably through discussion, scenarios and role play. If employees receive requests for facilitation payments in the future, they will be able to draw on their experience of role play in training to respond more confidently and effectively.
It is one of the most impactful aspects of Anti-bribery Training, that employees share their front-line experiences of demands for facilitation payments and responses that were effective. Responses to requests for facilitation payments may include:
• Explaining to the officer requesting the payment that it is against UK law and the company’s policy to make facilitation payments
• Showing the officer a wallet card setting out UK law and the company’s policy on facilitation payments
• Requesting to speak to the officer’s manager / senior staff
• Contacting the company’s Legal Team that to speak with officer
• Raising with the officer the importance of the company’s business to their country’s economy and its health and education corporate social responsibility initiative projects.
In combating facilitation payments companies must ensure that their processes are in alignment with the Government’s “Adequate Procedures” Guidance and the SFO’s recently advised Six Step Approach. In acting on their commitment to oppose facilitation payments companies must also consider the role of recording and analysing payments made, pre-planning, introducing technology to put a greater number of transactions at arms-length transactions and training employees in effectively responding to demands for payments.

Bribery Act 2010 – what does it mean for juniors?

BRIBERY ACT 2010 – What does it mean for juniors?

A “Red Letter Date” in any UK legal and management diary is 1st July 2010 – when the UK Bribery Act 2010 comes into force. Given recent media attention, the Act and its implications for UK businesses will be news to few. However, to mention the headline implications for UK companies  – the Act applies to all businesses registered and doing business in the UK; there is no upper limit on fines for companies found convicted of the corporate offence of failure to prevent corruption and the only defence for companies is to demonstrate to the court that they have in place “Adequate Procedures” to prevent corruption.

The “Adequate Procedures” have been generally described as including a statement of zero tolerance of corruption by management; an anti-corruption policy, anti-corruption training, Helpline availability and auditing and monitoring procedures. Implementing such procedures may present no difficulty for well-resourced companies but what does “Adequate Procedures” look like for small to medium-sized enterprises (SWEs) working in high corruption-risk countries, such as junior mining companies?

The most recent guidance on the Act published on 30th March 2011, repeatedly emphasises that the measures implemented by SMEs should be “proportionateand that, in the words of State Secretary for Justice, Kenneth Clarke, “combating the risks of bribery is largely about common sense, not burdensome procedures”. The guidance fully acknowledges that for application of the 6 anti-bribery principles set out in the guidance is likely to be different for SMEs than multinationals. Common ground across companies however is that they should adopt a risk-based approach to managing bribery risks, specific to their circumstances.

The guidance does not have statutory authority but must be regarded by the two bodies which have the power to bring prosecutions under the Act – the Serious Fraud Office (SFO) and the Department of Public Prosecutions (DPP).

In responding to the Act’s introduction, juniors must realise that Bribery Act 2010 compliance is primarily a practical matter of implementing policies and processes. A number of the “Adequate Procedures” measures are straight-forward and easily able to be implemented. The world’s leading anti-corruption NGO, Transparency International, and The United Nations Global Compact (UNGC) have developed tools specifically to assist SMEs with anti-bribery compliance. It is important that juniors take a timely, responsible, proactive attitude to the Act and its introduction and are able to demonstrate that they have done so to the court.

  1. A responsible response and Board statement

The company’s Board should receive a presentation on the Act from its legal or policy advisers, discuss the Act’s implications for the company and the steps it will take. These may include delegating authority for the implementation of procedures to staff, legal counsel or engaging short term consultancy. However, the guidance says that it does not intend Bribery Act 2010 compliance to be burdensome for SMEs. Transparency International (www.transparency.org) has published a step-based, practical tools to assist SMEs to implement anti-bribery measures.

The Board should make a statement on zero tolerance of corruption. The statement should be published internally to offices and operations and externally and reproduced in the company’s Code of Conduct and Anti-corruption Policy.

2. Gap analysis

The company should assess the policies and procedures it already has in place to forestall anti-corruption, as a basis for the further measures it needs to systematically implement.

3. Risk analysis

Risk analysis should be periodic, informed and documented. Risks, especially in the mining industry, change over time given such considerations as government stability and cultural attitudes to corruption in countries where mining companies operate. A junior should assess the nature and extent of its exposure to potential internal and external risks of bribery. The guidance sets out examples of the risks that should be considered:

i. Country risk – perceived levels of corruption reflected by indicators such as Transparency International’s annual Corruption Perceptions Index (CPI).

ii. Sectoral risk – what are the risks specific to the mining industry?

iii. Transaction risk – certain types of transactions such as charitable and political contributions, licences and permits give rise to higher levels of risk.

iv. Business opportunity risk – higher value projects or those involving many contractors or intermediaries indicate higher potential risk.

v. Business partnership risk – relationships involving intermediaries, consortia, joint venture partners, politically exposed persons and  foreign public officials entail high potential exposure to risk.

vi. Procedural risk – to what extent may internal structures or procedures forestall risk?  There may be deficiencies in employee anti-corruption or general training, skills and knowledge; lack of policy or clarity in policy on key areas and lack of a strong, public top level commitment to anti-corruption.

4. Code of Conduct

The company may already have a Corporate Code of Conduct. This should be revised to include the statement of zero tolerance of corruption.

5. Anti-corruption Policy

An anti-corruption policy need not be extensive. What is just as important as its content is that the policy is practical, accessible to employees – across office and mine site operations, implemented and widely published and distributed. The policy should be augmented by communications materials underpinning key aspects of the policy. The Policy should contain statements on the following key areas:

–       Bribery

–       Gifts and hospitality

–       Facilitation payments

–       Conflicts of interest

–       Use of company assets

–       Use of intermediaries

–       Relations with foreign public officials.

6.    Due Diligence

Due diligence undertaken on renewing current and undertaking new projects and contractual relationships should also be proportional and risk-based. Due diligence should already be part of good corporate governance, though may need to be augmented by enquiries related to corruption-risk. The due diligence research may be internet based, augmented by specific enquiries appropriate to the sector and country and require the prospective intermediary or project partner to provide information and documentation in response to a questionnaire.  For example, providing examples of their own Code and Anti-corruption statements/policy.

Under the Act, a company’s employees  are presumed persons ‘associated’ with the organisation. Therefore, companies may wish to incorporate ethics-based questions and due diligence into their recruitment and human resources procedures and  ensure that all new employees receive training on the company’s anti-corruption policy on joining the company.

7. Anti-corruption training and communications

Internal communications should convey zero tolerance of corruption by management and provide a system for employees to ask questions or report concerns. Training of employees should be proportionate to risk. It might entail a general presentation on the anti-corruption policy to the majority of employees and specifically focussed training for middle and senior management on aspects of wider corruption-exposure – such as intermediaries and dealing with foreign public officials. There may be particular cultural aspects and attitudes regarding corruption of which employees should be aware, depending where the company operates. It will be important for a company to demonstrate that training was received by employees and refresher training provided at appropriate intervals by keeping careful records of training.

8. Monitoring and review

Anti-corruption is a dynamic field and companies must remain vigilant and responsive to new risks which may arise where and with whom they work. A company should institute a protocol for periodic review of its anti-corruption policy, training, recording and reporting. It might seek some form or external verification of its anti-bribery procedures or apply for certified compliance with an independently verified industry anti-bribery standard.

Foremost will be for juniors to be informed of the Bribery Act 2010 and take responsible, proportionate measures to implement risk-based anti-bribery compliance.

Michelle Witton is an Ethics & Compliance Consultant and lawyer, who has implemented anti-corruption compliance for Anglo American plc and AstraZeneca. Michelle can be contacted at www.mwethics.com (under construction) or 07950 932070.