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FCPA Trends in the Emerging Markets of China, Russia, Latin America, Africa and India

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FCPA Trends in the Emerging Markets of China, Russia, Latin America, Africa and India Webcast: FCPA Trends in the Emerging Markets of China, Russia, Latin America, Africa and India F. Joseph Warin Joel M. Cohen Kelly S. Austin Benno Schwarz Sacha I. Harber-Kelly January 9, 2018 MCLE Certificate Information MCLE Certificate Information • Most participants should anticipate receiving their certificate of attendance in four weeks following the webcast. • Virginia Bar Association members should anticipate receiving their certificate of attendance in six weeks following the webcast. • All questions regarding MCLE Information should be directed to Jeanine McKeown (National Training Administrator) at 213–229-7140 or [email protected]. Gibson Dunn 2 Topics to Be Discussed • An Overview of FCPA Enforcement • Emerging Market Trends: China, Russia, Latin America, Africa, and India − China: Anti-Corruption Enforcement & Trends − Russia: Anti-Corruption Enforcement & Trends − Latin America: Anti-Corruption Enforcement & Trends − Africa: Anti-Corruption Enforcement & Trends − India: Anti-Corruption Enforcement & Trends • Global Trends and Risk Mitigation Strategies • Appendix: The FCPA Gibson Dunn 3 An Overview of FCPA Enforcement Gibson Dunn 4 FCPA Enforcement Actions Per Year (1977-2017) Combined DOJ/SEC FCPA Enforcement Actions Per Year (1977-2017) 80 74 70 60 53 50 48 40 39 40 38 33 27 30 26 23 20 19 20 15 14 13 11 10 10 10 10 7 7 7 7 10 6 5 3 3 3 2 2 1 1 1 1 1 0 0 0 0 0 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Gibson Dunn 5 FCPA Enforcement Actions Per Year (2008-2017) Number of FCPA Enforcement Actions Per Year 50 48 DOJ Actions 45 SEC Actions 40 35 32 29 30 26 26 25 25 23 21 20 19 20 17 14 13 15 12 11 10 10 10 9 10 8 5 0 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Gibson Dunn 6 Number of FCPA Enforcement Actions by Country (1978 to Present*) China 89 Nigeria 75 Mexico 60 Indonesia 50 Iraq 48 Saudi Arabia 36 Argentina 35 Brazil 35 India 30 Russia 29 Venezuela 23 Angola 22 Business conduct in China remains Thailand 21 Kazakhstan 21 the largest source of FCPA actions in Egypt 18 Malaysia 16 Vietnam 15 the history of the statute. South Korea 15 Panama 15 Ivory Coast 15 Costa Rica 14 Haiti 14 Guinea 14 DRC 13 Azerbaijan 13 Greece 12 Uganda 12 Uzbekistan 12 Iran 12 UAE 11 Honduras 10 Poland 10 Ecuador 10 Taiwan 10 Colombia 10 Dominican Rep. 10 Turkey 9 Chile 9 Bangladesh 9 Niger 8 Gabon 8 Nicaragua 8 Algeria 8 0 10 20 30 40 50 60 70 80 90 100 * Minimum eight enforcement actions. Gibson Dunn 7 Enforcement of the FCPA: Criminal Penalties Anti-Bribery Provisions • Corporations: USD 2 million fine or twice the pecuniary gain or loss. • Individuals: Up to five years’ imprisonment, and a USD 250,000 fine or twice the pecuniary gain or loss. Books and Records Provisions • Corporations: Criminal penalties up to a USD 25 million fine. • Individuals: Up to 20 years’ imprisonment, and a USD 5 million fine. Total Value of Corporate FCPA Monetary Resolutions (2004 – 2017) $2,500,000,000 $2,000,000,000 $1,500,000,000 $1,000,000,000 $500,000,000 $0 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Gibson Dunn 8 Leading FCPA Enforcement Actions: Top Ten Monetary Settlements No. Company Total Resolution DOJ Component SEC Component Date 1 Siemens AG* $800,000,000 $450,000,000 $350,000,000 12/15/2008 2 Alstom S.A. $772,290,000 $772,290,000 -- 12/22/2014 3 KBR/Halliburton $579,000,000 $402,000,000 $177,000,000 2/11/2009 4 Teva $519,000,000 $283,000,000 $236,000,000 12/22/2016 5 Telia** $483,103,972 $274,603,972 $208,500,000 9/21/2017 6 Och-Ziff $412,000,000 $213,000,000 $199,000,000 9/29/2016 7 BAE Systems*** $400,000,000 $400,000,000 -- 2/4/2010 8 Total S.A. $398,200,000 $245,200,000 $153,000,000 5/29/2013 9 VimpelCom**** $397,700,000 $230,200,000 $167,500,000 2/18/2016 10 Alcoa $384,000,000 $223,000,000 $161,000,000 1/9/2014 * Siemens’s U.S. FCPA resolutions were coordinated with a €395 million ($569 million) anti-corruption settlement with the Munich Public Prosecutor. ** Telia agreed to pay a total of $965,603,972 in criminal penalties and disgorgement to authorities in the United States, the Netherlands, and Sweden. *** BAE pleaded guilty to non-FCPA conspiracy charges of making false statements and filing false export licenses, but the alleged false statements concerned the existence of the company’s FCPA compliance program, and the publicly reported conduct concerned alleged corrupt payments to foreign officials. **** The total combined amount of U.S. and Dutch penalties will be $795.3 million. The U.S. is also seeking forfeiture of $850 million in corrupt proceeds. Gibson Dunn 9 Leading Enforcement Actions In addition to record-setting monetary penalties in the U.S., several companies have also paid significant fines to non-U.S. regulators. Total US Company Non-US Resolution Resolution Siemens’s U.S. FCPA resolutions were coordinated with a Siemens AG USD 800,000,000 €395 million ( USD 569 million) anti-corruption settlement with the Munich Public Prosecutor. Odebrecht and Braskem agreed to pay a total of USD 3.5 Odebrecht S.A. & billion for a global settlement with authorities in the U.S., USD 419,800,000 Braskem S.A. Brazil, and Switzerland. The total combined amount of U.S., Dutch, and Swedish Telia USD 483,000,000 penalties will be USD 965.8 million. In addition to the U.S. settlement, Keppel agreed to pay Keppel Offshore USD 105,600,000 USD 211,100,000 to Brazilian authorities and USD 105,600,000 to Singaporean authorities. Gibson Dunn 10 Corruption Trends: China, Russia, Latin America, Africa and India Gibson Dunn 11 CHINA Gibson Dunn 12 China: Market Characteristics Estimated population of 1.4 billion China in 2017. Median age of 37. USD 380.24 China’s annual foreign trade billion surplus through November 2017. 6.4% China’s projected GDP growth rate for 2018. USD 1.09 Total value of exports (first half trillion of 2017). Expected reduction of working 90 million age population between 2010 and 2040, primarily due to low fertility rate. USD 905.3 Value of overseas assets held billion by China’s central state-owned enterprises. Sources: Worldometers: China Population 2016; General Administration of Customs: Access to Public Information - Customs Statistics; Xinhua: IMF revises up China’s Gibson Dunn growth forecast for 2017, 2018 (July 24, 2017) http://news.xinhuanet.com/english/2017-07/24/c_136468017.htm; China Working Age Population ‘to Fall 10% by 2040’, FT 13 (Dec. 9, 2015). Economic Information Daily: 将着力打造一批具有全球竞争力的国企, (Oct 19, 2017) http://www.jjckb.cn/2017-10/19/c_136690221.htm China: Corruption Landscape Five years in, a recap on Xi Jinping’s “crushing tide” anti-corruption campaign: th 79 on the Corruption th of Chinese people satisfied with Perceptions Index (40). 100 on the 92.9% CPI in 2014. anti-corruption efforts in 2016. Up from 75% in 2012, according to the Chinese National Bureau of Statistics. A highly political campaign reaching from the highest levels of the PRC establishment… Sitting members of the 18th PLA officers ≥ corps level ensnared Central Committee of the CCP and punished. More than the 18 detained by corruption >100 number of generals who died on the investigators. battlefield to establish the PRC. …across every province in the country Local government organizations, agencies, and SOEs in which the Grassroots Party members punished for graft. 8,900 city level officials and Central Commission for 278,000 227 Disciplinary Inspection has 278,000 63,000 county level officials were also carried out inspections. punished. Sources: Transparency International, Corruption Perceptions Index (2016); Financial Times, China anti-corruption purge hits Central Committee members (Oct 18, 2017) https://www.ft.com/content/51ea866e-b314-11e7-a398-73d59db9e399; Xinhua, Profile: Xi Jinping and his era, (Nov 17, 2017) http://news.xinhuanet.com/english/2017- Gibson Dunn 11/17/c_136758372_6.htm; Xinhua, 440 Senior Officials Investigated for corruption (Oct 19, 2017) http://news.xinhuanet.com/english/2017-10/19/c_136691587.htm; 14 Caixin: What Fallen Officials Did to Get Ahead and Avoid Getting Caught (Sept. 15, 2017) https://www.caixinglobal.com/2017-09-15/101145839.html,. China: Anti-Corruption Campaign and Domestic Enforcement By the Numbers (since January 1, 2017): Number of officials disciplined by CCDI in China for violations of the “Eight Rules” (embezzlement, 42,740 bribery, abuse of power, misappropriation, dereliction of duty, and malpractice). 43,414 Number of cases investigated by CCDI for violations of the “Eight Rules.” 60,972 Number of officials investigated by CCDI for violations of the “Eight Rules.” Highlights of the anti-corruption campaign in 2017 • Former Chairman of the China Insurance Regulatory • Justice Minister since 2005 Wu Aiying expelled from the Commission Xiang Junbo referred for prosecution after Party for corruption offenses. being investigated for bribery and abuse of regulatory power. • Central Military Commission member General Zhang Yang committed suicide after being put under investigation for • Party Secretary of Chongqing and Politburo member offering and receiving bribes and holding property from Sun Zhengcai, once seen as a potential successor to Xi unidentified sources. Jinping, referred for prosecution after being investigated for corruption and abuse of power.
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