In a timely development, the Wolfsberg Group, an industry association of thirteen global financial institutions, has recently updated their Anti-Bribery and Corruption Compliance Programme Guidance (“Guidance”).
In this post, we summarise the Guidance and illustrate its utility to businesses both in and outside of the financial industry.
The Guidance now incorporates the latest thinking on the corruption risks that arise in areas including:
Clearly these are issues that apply to virtually all business sectors. In all these areas, the Guidance emphasises the importance of adopting a risk-based approach that reflects the greater bribery and corruption risks associated with interacting with particular entities, such as governments and public officials.
But who constitutes a public official?
The Guidance acknowledges that regulators and prosecutorial authorities around the world take an increasingly expansive view of who constitutes a public official for the purposes of domestic anti-bribery and corruption (“ABC”) laws.
We have seen this here in Hong Kong, where the Court of Final Appeal held that Hong Kong’s Prevention of Bribery Ordinance (Cap. 201) applied even if the person being bribed was a foreign public official and the bribe was in relation to the official’s duties outside of Hong Kong.
In relation to public officials, the Guidance states that individuals in the following types of organisations should be considered as public officials:
We would add that members of tribunals, review bodies and investigative or regulatory commissions should also be considered as public officials.
It can sometimes be difficult to assess whether an individual is a public official – the best way to protect your business is by ensuring that your compliance program covers all individuals associated with any of these types of organisations, with concomitant processes, controls and (if necessary) third party vendor data sources to identify them.
How can my business build an effective compliance program?
The Guidance recommends that an effective ABC compliance program will generally feature the following six core areas:
There is, however, no uniform compliance program. Rather, a business’s ABC compliance program must be tailored to that business’s specific circumstances.
We suggest that particular consideration should be given to the jurisdiction in which the business operates, and where its customers and suppliers are located. A strong understanding of supply chains is essential, particularly as this becomes increasingly regulated.
Helpfully, the appendix to the Guidance provides examples of corruption and bribery red flags, which can significantly assist building a compliance program.
There’s more out there
The Guidance complements the Guidance on Politically Exposed Persons, updated on 23 May 2017, as well as the Wolfsberg Group’s other publications.
Inevitably, the Group’s output lacks jurisdictional specificity – but to access the latest global thinking on this issues that are applicable to all businesses, it is a really useful resource.
Contact us if we can help.
This post does not constitute legal advice.