Criminal justice is evidence the compliance system is not working

#CWE2016

Compliance Week Europe 2016 has kicked-off here in Brussels touting key themes of interactivity, knowledge exchange and peer-to-peer learning. Nearly 125 compliance and ethics professionals from around the world – as far as South Africa – joined together to discuss and dissect today’s emerging trends.

Patrick Quinlan Moderates Panel at Compliance Week Europe 2016
Patrick Quinlan (left) moderates keynote panel at Compliance Week Europe 2016. 

Moderated by Patrick Quinlan, CEO of Convercent, the first keynote session focused on what we are seeing unfolding today around anti-corruption, fraud and the role of regulation in the ever-changing landscape of legislation being developed in emerging markets; multilateral organizations such as the World Bank and the IMF, as well as in the public and private sectors.

The expert panel included:

  • Paul Brinkworth, Case Controller, Bribery and Corruption Division, UK Serious Fraud Office (SFO)
  • Laurent Cohen-Taungi, International Corporate Lawyer, Laurent Cohen-Tanugi Avocat (an international Paris-based boutique firm)
  • Nikos Passas, LL, B, Ph.D., Professor, Co-Director, Institute for Security and Public Policy, Northeastern University

In the midst of scandals metastasizing and imploding at institutions such as Wells Fargo, Volkswagen, Petrobras and organized crimes occurring such as the leak of the Panama Papers, the light that is shining on anti-corruption, fraud, third-party due diligence and criminal enforcement could not be brighter.

GOVERNMENT PERSPECTIVE 

Viewpoints brought to the audience from the UK Security Fraud Office set the stage around what the UK government is working towards and how it is handling investigations since the Anti-Bribery and Corruption Act was passed in 2010. Surprisingly, the SFO has only prosecuted three cases since the act was put in place, a low figure, but the point Brinkworth brought to the podium was about the level of complexity and inherent difficulty investigating cases such as what we see at Standard Bank, for example – one of the three cases at the SFO. With the long turnaround time to prosecute these cases, the SFO has clearly stated they are not in the business to provide companies with a “cover to hide.”

And just as detectives do not enjoy working from a tampered crime scene, the SFO does not want to head into an investigation where internal lawyers have started digging into key account witnesses or other case details. They’d rather have the company come forth with the case as it stands and let the SFO take over the investigation, which echoes what the Wall Street Journal reported last week around from the US perspective.

This stance is within good reason as Brinkworth shared that the SFO is seeing a positive change in corporate behavior and in the rate of whistleblower reporting. The proverbial pipeline for investigations has never been better. In due time, he said, the bribery act will fully take over in the UK.

LEGAL PERSPECTIVE

France has been building its regulation around anti-corruption as the adoption of French Anti-Corruption Law is forthcoming, Cohen-Tanugi shared. The draft Sapien II bill that focuses on transparency and fights against corruption and economic modernization. On the heels of the criticism from the Organization for Economic Cooperation and Development (OECD), the soon-to-be-law will be game-changing for French companies in particular and the ways in which they currently operate.

The five main aspects of the legislation include establishing a National Anti-Corruption Agency and the fine print around fines and penalties. French companies will be under a mandate to establish a corporate compliance program and the adoption of French-style data protection protocols. These French-style DPAs are revolutionary, according to Cohen-Tanugi, and is currently has the strongest resistance to any provision.

The trend for a compliance culture is certainly occurring in France, said Cohen-Tanugi, however, it is going to take some time to fully adopt. Cohen-Tanugi has already carried out two mandates in the role of an independent compliance monitor and is the only French lawyer to have been appointed as such with a major FCPA matter by the US Department of Justice and Securities Exchange Commission (SEC).

His heightened focus and expertise on economic regulation, corporate governance and regulatory compliance emphasizes the importance of this issue in the European compliance market.

HUMANIST PERSPECTIVE

While we see good regulatory frameworks developing around the globe and even in emerging markets, it’s hard not to talk about how anti-corruption is linked to other agendas. And with the amount of money, energy and human capital being put into developing supporting criminal justice systems and appropriate punishment, you’d expect progress in this area of compliance. But yet, the results we are seeing now are frustratingly bad, according to Passas.

With great technology solutions in the market to help the compliance professional manage their programs, we cannot forget the human factor of this business. Amidst the aftermath of what seems like daily regulatory tsunamis, we must admit that the same rules that we have been adopting and using day in and day out are not working across the board. After we admit that to ourselves, we can then address the bigger picture problem: our focus is too narrow. Not only do we have to oblige, of course, to the proper legislation, but we must address the context in which misconduct and wrongdoing occurs.

Look at it from Passas’ perspective, that misconduct can technically be lawful but inherently awful. For example, the complex organized crime behind the Panama Papers leak was technically legal, yet outstandingly awful in its impact. And the more regulation you place around this issue, the more opportunity there is for organizations and individuals to get even smarter with a complex crime.

The culture of ticking a box, simply going through the motions of what you are supposed to do and just concentrating on metrics is going to divert you from one crucial element of compliance: the human factor. Take a look at developing markets where the E&Y Global Fraud Survey found that despite investment in compliance programs, those markets are getting worse. If you find your program in a similar position perhaps it’s time to take a step back and ask yourself, “Is it really working? Is it changing something on the ground? Is it impacting decisions my employees are making?”

Passas calls for a continuous forum to help those who circumvent the law and have a blatant disregard for morality. There is a true difference, he argues, in collective action over repeatedly doing the same thing and expecting a different outcome. Having an ongoing forum or town hall-style discussion that fosters brainstorming where stakeholders can talk through current problems will not only bring forward a knowledge consensus but will couple well with current regulatory frameworks for true compliance effectiveness.

IN THE NAME OF A BETTER LIFE

At the end of the day, these professionals are gathered together in more idealist terms. They are not here to study law or discuss yet another new regulation, but rather learn how to find a way in which people can live better, conduct business safely and impact the way businesses interact and operate on the global scale.