According to Volkov, the government could require auditing by a third party and even certification to ensure that companies have up-to-date compliance programs. “If you want people to comply, deterrence is one way. That provides some incentive,” says Volkov. “But I think you would get greater compliance if companies are allowed to prove that they have comprehensive compliance programs.”
An adequate-procedure defense is part of a similar law in the United Kingdom. Called The Bribery Act of 2010, it takes effect this month. Under the U.K. law, a company has a defense against bribery charges if it can demonstrate that, before the illegal conduct took place, it had procedures in place to train, instruct, and educate employees about the law.
Another suggested change to the FCPA is to add a willfulness requirement for businesses. In a report for the U.S. Chamber Institute for Legal Reform, Restoring Balance: Proposed Amendments to the Foreign Corrupt Practices Act, coauthors Andrew Weissman and Alixandra Smith note that an individual’s liability under the FCPA is limited to situations in which he or she broke the law willfully. However, the act contains no such exception for companies.
“This omission substantially extends the scope of corporate criminal liability—as opposed to individual liability—since it means that a company can face criminal penalties for a violation of the FCPA even if it did not know that its conduct was unlawful,” according to the report.
Some experts advocate a shift to international enforcement as a way to thwart corruption around the globe, making FCPA violations scarcer. Getting all nations involved, with a common goal of stopping corruption, would be ideal. “The FCPA only applies to the bribe givers,” notes Volkov. “The bribe takers should also be punished.”
However, there are significant challenges to global enforcement. The Organisation for Economic Co-operation and Development (OECD) issued its Convention on Combating Bribery of Foreign Public Officials in International Business Transactions in 1997; it released new recommendations on preventing bribery of government officials in 2009. But the new recommendations have only 30 signatories. Of those, only seven countries are currently enforcing antibribery laws.
At the December 2010 meeting of the World Bank in Washington, D.C., a high-level meeting was held to discuss international antibribery efforts. According to Volkov, who attended the meeting, countries are willing to work together but the basic infrastructure to facilitate cooperation is missing.
“What was clear is that sometimes countries just don’t have the resources or the training or basic information-sharing capacity,” says Volkov. “For example, a prosecutor in Italy who uncovers information about corruption in France may not have any idea which agency to contact in the French government. The problems are that basic.”
Meanwhile, efforts to amend the FCPA are ongoing but advocates know that the task will not be easy. Such changes would require a sponsor in Congress. According to Leahy’s office, the senator has not yet formalized any plans to bring legislation on this issue and Specter resigned his office at the end of 2010. The last time the FCPA was significantly amended, in 1998, it took eight years for the legislation to work its way through Congress.
One roadblock to change is the perception that amendments would weaken the law and encourage unethical behavior. Koehler points out that these amendments would be designed to protect innocent companies and would not help companies get away with wrongdoing. Companies that foster a culture of corruption would still face significant fines. However, he acknowledges that the amendments are unlikely to be perceived that way.