resists including such provisions in a contract, it should be a
big red flag that much closer scrutiny of that party is required.”
“In training agents, an important goal for the protection of
in-house counsel’s company is to have foreign agents certify
that they have access to and read the relevant anti-bribery
policies, and have attended training on the use and application
of the policies,” Sosnow said.
“As for training clients,” he added, “to the extent that
there are key buyers, there may be good sense, depending on
the circumstances, to advise them of issues affecting them in
their relation with company officials such as what the com-
pany considers permissible by foreign agents or company of-
ficials in offering clients expenses for travel, gifts, and enter-
tainment. Documenting this would be a prudent practice.”
Identifying red flags is essential to an effective anti-corruption
policy. In-house counsel, Sosnow said, “may assist in the devel-
opment of [these] to signal the exercise of caution in develop-
ing relations with foreign agents, such as requests for payments
in cash or unusually large commissions.”
In the end, said Klotz, “it’s all about compliance and having
a program in place. A policy is not enough.”
When problems do arise, said Rambert, “the first step is to
investigate. This includes both the source of the allegation and
the nature of the alleged conduct. It is important to determine if
there are systemic failures as this may speak to a larger problem.
“If the investigation reveals that there may have been bribery,
then the second step is to take action to stop it and to report the in-
cident, as appropriate, to management, outside counsel, the board
of directors, authorities, including police, or third parties,” he add-
ed. “It is important to remember that reporting bribery is proactive
and may serve to decrease negative consequences going forward.”
“The key challenge normally is to get enough reliable infor-
mation to make informed initial decisions about whether and
how to investigate an allegation, to determine who should
conduct the investigation, and who should be involved in or
informed of it,” said Garver. “Once a decision is taken to inves-
tigate, moving quickly, preserving privilege, preserving docu-
ments, and compliance with local laws and the legal rights on
the persons accused, all have to be priorities.”
It’s important to ensure material is preserved, and that requires
keeping staff informed, Sosnow said. “This may act as a safe-
guard against the destruction of information that may be sought
by investigating authorities and minimizes the risk of potential
charges of obstructing otherwise authorized investigations.
“A key strategic issue for in-house counsel, in co-ordination
with key company officials and external counsel, will be deciding what policies and procedures will be employed during
any investigation,” he added. “Issues such as whether there will
be a document room for the conduct of the investigation, determining what documents to claim as privileged, whether to
ask for copies of materials that will be taken by investigators,
identifying the official who will monitor the investigation and
the point person for all communications regarding the investigation are absolutely critical to safeguarding the reputation of
the company during the investigation and ensuring that the
investigation is conducted with minimal harm and risk to the
company.” Ultimately, said Klotz, if an organization does not
deal with corruption at all levels, “it will be pervasive.” END
