Presenting a live 90‐minute webinar with interactive Q&A
Foreign Corrupt Practices Act in India Compliance Strategies for India's Unique Cultural and Governmental Intricacies
THURSDAY, MAY 26, 2011
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
TdToday’ s facul ty features:
Robert C. Blume, Partner, Gibson Dunn & Crutcher, Denver Pedro A. Medrano, Counsel, Wilmer Cutler Pickering Hale and Dorr, New York
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Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again. Foreign Corrupt Practices Act in India: Compliance Strategies for India's Unique Cultural and Governmental Intricacies
Strafford Webinar Robert Blume Pedro A . Medrano May 26, 2011
• Brief Overview of the Foreiggpn Corrupt Practices Act
• India: Market of the Future
• India: Anti-Corruption Enforcement and Trends
• How to Mitigate Corruption Risk in India
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An Overview of the Foreign Corrupt Practices Act (“FCPA”)
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A Brief Overview of the FCPA
The Foreign Corrupt Practices Act was enacted in 1977 in the wake of reports that numerous U .S . businesses were making large payments to foreign officials to secure business
• Anti-Bribery Provisions: The FCPA prohibits giving or offering anything of value to a foreign government official, political party, or party official with the intent to influence that official in his or her official cappyacity or to secure an improper advantage in order to obtain or retain business
• Accounting Provisions: The FCPA also requires publicly traded U.S. companiii“bkdd”dblies to maintain accurate “books and records” and reasonably effective internal controls
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Scope of the FCPA: Who Is Covered?
• Issuers: any company whose securities (including ADRs and registered debt) are registered in the United States or that is required to file periodic reports with the SEC
• Domestic Concerns: any individual who is a U.S. citizen, national, or resident of the United States (not just U.S. citizens), or any business organization that has its principal place of business in the United States or which is organized in the United States
• Other Persons who take any act in furtherance of a corrupt payment while within the territory of the United States
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Definition of “Foreign Official” The FCPA prohibits corrupt payments to “foreign officials,” which is expansively defined to include: • Any officer or employee (including low-level employees and officials) of a foreign government or any department , agency , or instrumentality of the government, which U.S. regulators have construed to include employees of government-owned or government-controlled businesses and enterprises • Officers and employees of public international orgg,anizations, such as the United Nations, World Bank or other international financial institutions, the Red Cross, and others • Partyyp officials and political candidates (including CPC) • Members of royal families 9
What Constitutes a “Thing of Value ”?
• Liability exists from the first yuan, rupp,ee, or riy al – there is no “de minimis” exception • It is not limited to tangible items of economic value • It can ildinclude anythi ng a reci iipient would find interesting or useful, including: • Gifts • TiTrips • Theatre Tickets • Loans • Entertainment • Employment • Mooncakes • Consulting Fees • Red Envelopes • Meals • Internships • Education • Professional Training • Political or Charitable Contributions
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Number of FCPA Enforcement Actions Per Year Anti-Bribery Provisions
• Corporations: criminal penalties 50 ild$2fiinclude a $2m fine or titwice th e 45 48 pecuniary gain or loss and 40 possible suspension and 35
30 debarment by the U.S. DOJ government 25 Actions 26 26 SEC 20 Actions • Individuals: criminal penalties 20 20 include up to five years’ 15 18 14 imprisonment, and a $250,000 10 13 8 fine or twice the ppygecuniary gain 5 7 7 5 0 2 3 or loss 2004 2005 2006 2007 2008 2009 2010
Books-and-Records Provisions • Corporations: criminal penalties India‐related enforcement up to a $25m fine 12 actions since 2000 • Individuals: criminal penalties include up to 20 years’ impp,risonment, and a $5m fine South and Central Asia 43 enforcement actions since 2000
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Siemens (2008) $800
KBR/Halliburton (2009) $579
BAE (2010) $400
Snamprogetti Netherlands $365 B.V. / ENI S.p.A (2010)
Technip S.A. (2010) $338
Daimler AG (2010) $185
Alcatel-Lucent (2010) $137.4
Panalpina (2010) $81.8
ABB Ltd. (2010) $58.3
Pride (()2010) $56.1
* Includes the BAE Systems prosecution, which involved international bribery but did not have any FCPA charges. * Settlement amounts are in millions. 12
FCPA En forcement Act ions B y C ountry (January 2000 - March 2011)
(Minimum 5 Enforcement Actions)
60 55 50 45 40 35 30 25 20 15 10 5 0
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Exceptions and Affirmative Defenses
• The FCPA permits payments to government officials in only a fitfew, very narrow circumstances: 1) Facilitating payments 2) Payments expressly permitted by the written laws of the host country 3) “Reasonable and bona fide expenditure[s], such as travel and lodging expenses . . . directly related to (A) the promotion, demonstration, or explanation of products or services; or (B) the execution or performance of a contract with a foreign government or agency thereof.” • These are all very narrow exceptions and defenses
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Facilitating Payments Exception
• Very limited exception for payments made to expedite or secure performance of “routine governmental action” • Limited to payments that “merely move a particular matter toward an eventual act or decision” – applies only when the government official has no discretion in performing duties • Payygpyygment must be for something to which the payor was already entitled, e.g., the mere receipt of an application, as opposed to approval of the application • Payment must still be nominal • Best practices counsel to prohibit facilitation ppyayments entirel y – 80% of U.S. companies have banned them • India, China, and many other countries do not allow facilitation payments • U.K. Briberyyp Act does not exempt facilitation payments • OECD encourages prohibition of facilitation payments
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India: Market of the Future
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China and India: Demographics and GDP
CHINA INDIA
• Populatio o:n: 1 ,33,60,000,331,460,000 • Populati on :1 ,1 55,34 8,000 • Est. Population in 2020: 1,421,260,000 • Est. Population in 2020: 1,379,198,000 • GDP: $5.74 trillion USD • GDP: $1.43 trillion USD • GDP Growth in 2010: 10.3% • GDP Growth in 2010: 8.3%
• Despite India’s lower reported GDP growth, India’s growth may have outpaced China’s in 2010 according to some economists. • Over the pp,ast decade, India’s pppopulation has grown b y rou ghl y the entire population of Brazil. Sources: CIA World Factbook; U.S. Census International Data Base 2010; Carnegie Endowment for International Peace, The World Order in 2050, April 2010; The Economist (Apr. 15, 2011 & Mar. 31, 2011). 17
India: Market Characteristics
• Indian economy is predicted to out- grow China b et ween 2009 and 2050 • Net inflow of FDI in India in 2009 was $34.58b • Population predicted to grow at 0 .88% between 2009 and 2050 • GDP predicted to grow at 5.9% from 2009 to 2050 • India remains highly volatile: Indian stock market is off 7% from its record high in November 2010. Inflation and corruption remain challenges • 15 Indian companies listed on NYSE or NASDAQ
Sources: U.S. Census International Data Base 2010; Carnegie Endowment for International Peace, The World Order in 2050, April 2010. 18
Global Corruption: Comparative Benchmarks Transparency International Corruption Perceptions Index 2010
Rank: 66th Rank: 78th (tied) Rwanda
China Rank: 69th (tied) th Cuba Rank: 87 (tied)
Rank: 69th India (tied)
Brazil
Source: Transparency International, Corruption Perceptions Index 2010. 19
Significance of the TI Index
• Prism through which regulators view countries. • Higher index mandates greater due diligence.
– TI CPI commonly used as part of “a comprehensive, risk-based FCPA and anti-corruppgp,tion due diligence work plan,” which was viewed favorabl yyy by DOJ in Opinion Procedure Release 08-02. – The U.K. Financial Services Authority’s settlement with Aon required Aon to design and implement a global anti-corruption policy that will limit the use of third parties in countries with a high risk of corrupt practices . Aon defines high-risk jurisdictions by reference to the corruption perceptions index.
“While it is now widely accepted that corruption is not simply a matter or fact of life and that it should be accepted , of course , this was not the case long ago . . . . The change in attitude can be linked, in my view, to a number of intervening factors, including the emergence of civil society's voice against corruption [led] by organizations such as Transparency International.” - Lanny Breuer, Assistant Attorney General of the Criminal Division (May 4, 2010)
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India: Anti-Corruption Enforcement and Trends
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India: Corruption Trends
50 4
55 3.8
60 3.6
65 3.4
After showing improvement 70 3.2 Score
Ranking
CPI
CPI
until 2006‐2007, India’s TI 75 3
80 2.8 India's
corruption perception score India's and relative rankings have 85 2.6 declined for the last two years. 90 2.4 95 2.2
100 2
3 4 5 6 7 8 9 0 00 00 00 00 00 00 00 01 2 2 2 2 2 2 2 2
“The culture of corruption is deeply Indians who believe the entrenchdhed in IIdindia and has not chhdanged level of corruption has for the better in the last few years.” 74% increased over the last three years. ‐ Bertelsmann Transformation Index 2010 – India Country Report
Source: Transparency International, Corruption Perceptions Index 2003-2010. 22
India: Paying Bribes Indian Companies 84% Indian companies that believe bribes or facilitation ppyayments are being paid “to do business.”
30% Pay bribes to low‐level officials to “speed things up.” 25% Pay bribes to high‐ranking officials or political parties. 25% Use personal relationships to secure public contracts.
Indian Residents Indians who report paying a bribe to a major government 54% service provider in the last 12 months.
Sources: Transparency International, Bribe Payers Index 2008; Transparency International, Corruption Perceptions Index 2010; KPMG, India Fraud Survey Report (2008).
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India: Corruption in Government Indians Using an Agent to Obtain Government Services 70% → Driver’s License 54% → Ration Card 47% → LdLand Title 15% → Passports
Most Corrupt Government Sectors: An Indian “RTO Consultant” openly advertises his driver’s license assistance services 1. Police 2. Political Parties 3. Parliament and the Legislature 4. Registry and Permit Services
Sources: Marianne Bertrand et al., Obtaining a Driving License in India: An Experimental Approach to Studying Corruption, Quarterly Journal of Economics, November 2007, Vol. 122, No. 4, Pages 1639-1676; National Election Watch, 2009 Lok Sabha Elections High-Level Analysis. 24
Telecom scandal plunges Bribe-for-loan scam: Time for more India into political crisis transparency “Eight senior executives from various financial “T he issue is how a m in ister a llie d w it h t he institutions were arrested by the Central Bureau of party sold cellphone operators the airwaves to Investigation for allegedly accepting bribes for provide their service in 2008. . . . An sanction of loans. The agency said loan syndicator, independent auditor estimated that the Money Matters, bribed lenders from Bank of India, government may have left almost $40 billion Central Bank of India, Punjab National Bank and LIC on the ta ble byb se lling the right i hts too c heaply l. ” HiHousing Finance to get bibig-tikicket loans sanct ione d”d.” – – New York Times, 12/13/2010 Economic Times, Times of India, 12/8/2010
CVC X-rays 16 Commonwealth Games projects, detects Adarsh housing scam: Three ex- brazen corruption service chiefs likely to return flats “A controversy has erupted over how the Adarsh “The Commonwealth Games edifice is society in upscale Colaba, originally meant to be a crumbling under thickening suspicions of six-storey structure to house Kargil war heroes and corruption and inefficiency, with the CVC widows, got converted into a 31-storey building. referring one of the several cases of corruption The highrise . . . was cleared on the condition of bedeviling the event to the CBI.” – Economic housing war veterans but now has 104 members Times, Times of India, 7/30/2010 including senior army commanders, a former environment minister, legislators and state bureaucrats. – Times of India, 10/29/2010
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Palmolein import case Bellary mining implicates the CVC controversy “The latest challenge before “h“The Supreme Court . . . a llowe d a Kera la court thddhe Yeddyurappa government to go ahead with the trial in the multi-crore is the illegal extraction and palmolein oil import case involving Chief transportation of iron ore Vigilance Commissioner P.J. Thomas. . . . The contravening forest rules, Cash-for- case pertains to the import of palm oil from a and its export. . . . That the Questions scam Singapore firm, which was allegedly done at Bellary mining lobby has in “The journa lis t pe titioners prices higher than the international rate. . . . recent years been dictating had conducted. . . an Thomas had issued the government order for the direction of politics in infamous sting operation the import which caused a loss of Rs. 2.32 Karnataka is obvious, but where members of crore to the state exchequer.” – The Hindu, under the BJP government Parliament were allegedly 1///11/2011 its power and reach has caught on camera become more overt.” – accepting money to ask Niira Radia tapes controversy Frontline Magazine, questions in the House. . . . 8/13/2010 [E]ven a year and a half “The publication of taped conversations between after the tapes were aired . . Niira Radia – a lobbyist for Mukesh Ambani and . the police had still not Ratan Tata wihith a keen interest in the allocat ion registered a single FIR of ministerial portfolios – and editors, reporters, against the . . . industrialists and politicians has shone a harsh Parliamentarians. Instead, and even unwelcome light on the web of the police chose to go after connections which exist between the worlds of the journalists . . . .” – The business, politics, and journalism.” – The Hindu, Hind u, 11/3/2010 11/24/2010
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ASA Spectrum o fCf Corrupt ion
• 500 rupees to • Pride Forasol,,y a subsidiary of • Sale of India’s 2G obtain a marriage Pride International, paid mobile-telephone certificate $500,000 to judges of the Indian spectrum, which • 100 rupees to Customs, Excise and Gold allegedly cost India pass a driving test Appellate Tribunal for a $39 billion in revenues. favorable determination in a • Norwegian authorities customs duties and penalties charged Yara, the dispute. world’s largest nitrogen • Pioneer Friction Ltd ., a fertilizer maker , for subsidiary of Westinghouse Air bribery in connection Brake Technologies, paid with $1 million $130,000 to employees of the improper payment paid Indian Railway Board to obtain in efforts to create an contracts. Indian joint venture.
SmallSmall--scalescale bribery Massive corruption
Sources: The Economist (May 5, 2011 & Mar. 10, 2011); Reuters (May 12, 2011)
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India: Business Challenges of Corruption Corruption Rank of corruption on World nd Economic Forum’s survey of Limit ed AAtinti‐CtiCorruption CliCompliance 2 most problematic factors for Efforts by Indian Companies doing business in India. Indian companies with a monitor ing or reporting Indian Companies’ Lack of Knowledge of 52% system to assess the FCPA Anti‐Corruption Laws or U.K. Bribery Act risks. Indian companies reporting Indian companies claiming that senior managers are to have “adequate 45% “thoroughly familiar” with 55% procedures to prevent the FCPA or U.K. Bribery bribery.” Act.
Sources: World Economic Forum, The Global Competitiveness Report 2010- 2011; Economic Intelligence Unit & Kroll, Global Fraud Report (2010-2011 annual edition).
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India: Domestic Anti-Corruption Regime Indian Companies Act, 1956 § 211(1)‐(2) Requires that every balance sheet or profit and loss statement present “a true and fair view” of the company’s affairs. § 211(7) Officers and directors can face imprisonment and/or fines if they fail to “take all reasonable steps to secure compliance by the company.” Note the similarities to the FCPA’s requirement to “make and keep books, records, and accounts, which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the issuer.”
Income-Tax Act, 1961 “Greasing the palm of the R.T.O. staff . . . § 37(1) Allows deductions for business expenses, although would not only be an illegal act, but the Finance Act (1998) amended the I‐T Act to amounts to illegal gfgratification. Such illegal gratification cannot be allowed to cliflarify tha t payments for “any purpose whic h is an be deducted.” offence or which is prohibited by law” are not ‐ Gwalior Road Lines v. Commissioner of deductible. Income Tax [1998] 234 ITR 230 (MP). •Conseqqyuently deducting bribes, “secret commissions,” or other illegal expenses can amount to tax fraud.
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India: Anti -Corruption Enforcement Agencies
Central Bureau of Investigation (CBI) • Primary agency for investigating and prosecuting PCA violations in Central Government
Central Vigilance Commission • Oversees CBI investigations and Chief Vigilance Officers in government organizations
Lok Ayukta • State‐level ombudsmen created to independently investigate allegations of corruption •Granted investigative authority, but do not have the ability to enforce laws or impose punishment
Enforcement Directorate • Under the administrative control of the Department of Revenue, Ministry of Finance, the Enforcement Directorate has its headquarters in New Delhi, and is responsible for enforcing the various provisions of the Foreign Exchange Management Act, 1999
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India: Domestic Anti-Corruption Initiatives
Integrity Pacts • Introduced by Transparency International (India) in 2006 • Publicly supported by the Central Vigilance Commission and Prime Minister Singh • Agreed to as part of 39 public sector projects in India since 2006, including projects by the Steel Authority of India, Ltd. (SAIL), Oil India, Ltd.,
and the Oil and Natural Gas Corporation Ltd. of . . . India (ONGC)
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Integriiiity Pacts: Key Provisions
•The contracting agency agrees that its officials will not demand or accept bribes, gifts, or other forms of illicit payment • Bidders agree that they have not paid, and will not pay, any bribes, gifts, or other forms of illicit payment; any permissible payments in connection with the contract must be disclosed • Bidders are encouraged to have a Code of Conduct for their employees and a Compliance Program to ensure that the Code is implemented • Violations may be reported to Independent External Monitors, who are charged with overseeing the execution of the Integrity Pact’s terms • Violations can subject bidders to cancellation of the contract, forfeiture of their bond, liquidated damages, and bans on future government procurement opportunities
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Additi onal Indi an A nti -CiiiiCorruption Initiatives
• The “Zero Rupee Note”: The NGO 5th Pillar has printed and distributed more than 1 million such notes and encouraged Indians to give them to officials who solicit bribes.
• Auctions for State Contracts: Indian states such as Gujarat run online auctions for contracts.
• www.ipaidabribe.com: Indian website on which individuals may post details of how (and whom) they were forced to bribe.
Sources: The Economist (Mar. 10, 2011 & Jan. 28, 2010); .
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G20 Anti‐Corruption Action Plan • Signed at the Seoul Summit in November 2010 •Key Components: Commitment to implement UNCAC; anti‐money laundering; whistleblower protections; visa denials to corrupt officials; asset recovery; increased law enforcement cooperation
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FCPA Enforcement Actions Relating to India
• Baker Hughes (2001) • Dow Chemical (2007) • Textron (2007) • Electronic Data Systems (2007) • York International (2007) • Westinghouse Air Brake Technologies (2008) • Control Components , Inc . (2008) • Pride International (2010)
• OiGOngoing Governmen tld/ItlItitital and/or Internal Investigations: • Avon Products • Kraft Foods
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Mitigating Corruption Risk
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“I am writing to draw your attention to the UUS.S. report on the Foreign Corrupt Practices Act (FCPA) and Anticorruption Enforcement for the second half of 2008 and early part of 2009 . . . . You may like to take appropriate action to have these investigated on our end.”
‐Letter from Indian Ambassador to the U .S . Meera Shankar to the Prime Minister ’s Office , May 12, 2009, discussing seven recent FCPA enforcement actions related to India.
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Lesson #2: Be particularly vigilant in monitoring government touch‐points and controlling petty cash disbursements.
•Many cases in India involve payments of relatively modest sums: Dow Chemical: Agricultural inspectors were paid less than $100 each to distribute and sell products. Westinghouse: Subsidiary made $67 payments to officials at various railway regulatory boards to schedule pre‐shipping product inspections and obtain issuance of product delivery certificates, and $32 payments to the Central Board of Excise and Customs to curb frequency of tax audits. •The Indian “License Raj” persists (official documentation ranging from merger and amalgamation approvals to construction permits can take years)
“[In India] more than half of the reported bribe demands were for $100 or less, and approximately 84% of the reported demands were for $5,000 or less.” ‐ Bus iness Reg istry For I nternat ional Br ibery an d Extort ion (BRIBELine ) In dia Report, 2009
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Lesson #3: Exercise caution and undertake due diligence before entering joint ventures or retaining agents, consultants, or distributors.
•A common theme in India‐related FCPA cases is the use of agents or consultants to mask the true destination of improper payments: Control Components, Inc.: Alleged to have retained agents and consultants to further a scheme to pay $6.85m to employees and officers of private and public sector customers between 2003 and 2007. York International: York’s Indian subsidiary retained an Indian agent who allegedly made improper payments or provided gifts to Indian Navy officials to secure business for York India. Westinghouse: Agents allegedly were used to submit false invoices to conceal payments being made to railway and tax officials. Pride International: A customs consultant was allegedly involved in payments to judges of the Customs, Excise, and Gold Appellate Tribunal
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Lesson #4: Closely scrutinize invoices without sufficient documentation or justification. Be particularly careful of “liaisoning services.”
•Several FCPA cases in India focus on the books‐and‐records violations resulting from improper accounting methods that falsely document corrupt payments: Textron: Allegedly made improper payments to government officials in India between 2001 and 2005 to secure contracts, and recorded them as consultation fees or commissions. Electronic Data Systems: Paid $720,000 in cash and gifts to Indian officials that were funded with fabricated invoices and improperly recorded in EDS’s accounting books and records. Westinghouse: Wholly owned subsidiary made payments to railway and tax officials. Payments were concealed through a scheme whereby agents submitted invoices for materials or services that were not provided.
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• Automated bidding and customs processes (e.g., Gujarat’s public works online auction portal and the Indian Customs EDI Gateway (“ICEGATE”)) • Pre-approvaldl procedures and dffifttld forms for gift, travel, and entertainment expenditures • Pre-approval of gifts is especially important during the festival of Diwali (mid-October to mid November). • Pre-approval procedures and forms for political and charitable contributions • Third-party due diligence procedures and questionnaires • Cultural sensitivity trainings in conjunction with anti- corruption trainings • Periodic evaluation and audit procedures designed to ensure that compliance policies are working as intended
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Some disclosures to consider making: • Risks associated with working in countries with high perceived level of corruption • Risk s associ at ed with v io la ting an ti-corruption l aws • Risks associated with potential failures in the compliance program, no matter how well designed • Risks associated with corruption-related criminal and civil liability
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• Compliance with international and U.S. laws and regulations that apply to our international operations increases our cost of doing business in foreign jurisdictions. These l aws and regul ati ons i ncl ud e U .S . l aws such as th e Fore ign Corrup t Practices Act, and local laws which also prohibit corrupt payments to governmental officials. . . . Violations of these laws and regulations could result in fines,,g,py,p criminal sanctions against us, our officers or our employees, and prohibitions on the conduct of our business. . . . Our success depends, in part, on our ability to anticipate these risks and manage these difficulties. We monitor our international operations and investigate allegations of improprieties relating to transactions and the w ay in w hich su ch transactions are recorded. Where circumstances warrant, we provide information and report our findings to government authorities, but no assurance can be given that action will not be taken by such authorities.
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Sample language:
• [C]ompliance with complex foreign and U.S. laws and regulations that apply to our international oppgerations increases our cost of doing business in international jurisdictions and could . . . expose us or our employees to fines and penalties. These numerous and sometimes conflicting laws and regulations include . . . U.S. laws such as the Foreign Corrupt Practices Act, and local laws prohibiting corrupt payments to governmental officials. Violations of these laws and regulations could result in fines, criminal sanctions against us, our officers, or our employees, prohibitions on the conduct of our business, and damage to our reputation. Internal controls, policies, and procedures and employee training and compliance programs that we have implemented to deter prohibited practices may not be effective in prohibiting our employees, contractors, or agents from violating or circumventing our policies and the law.
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Contact Information
Robert C. Blume Pedro A. Medrano Partner Counsel Denver Office New York T: +1 303.298.5758 T +1 212.295.6410 F: +1 303.313.2870 F +1 212.230.8888 [email protected] [email protected]
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