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JUNE 2016


zation for Economic Cooperation and Development’s Anti-

Bribery Convention in 1997 and the United Nations Convention

Against Corruption in 2003, that require state signatories to

adopt similar legislation criminalizing foreign bribery. This has

resulted in foreign countries aggressively enforcing anti-corrup-

tion laws.

Trying to persuade foreign governments to create a trans-

parent business environment can be extremely challenging,

especially when the local government finances itself through

corruption. Trying to work through nongovernmental orga-

nizations (NGOs) that seek to expose government corruption

creates the risk of alienating the local government. However,

the FCPA focuses on the supply side of bribery—i.e., the foreign

companies that are paying bribes locally.

Advocating compliance with the FCPA makes the point

that corruption is a two-way street and requires cooperation

between the country of the bribe giver and the country of the

bribe receiver. This message is usually much less threatening

to foreign governments than hectoring about democracy and

human rights.

Moreover, foreign companies are often enthusiastic about

having their employees trained in the FCPA. Many of them real-

ize that having a compliance program that meets international

standards gives them a competitive advantage because U.S. and

European multinationals will often pay a premium to avoid the

anxiety and risk that accompany working with companies that

do not practice good business ethics.

Russia, for Example

Russia provides a good example of how this can all work

in practice. While Russia has a long way to go before it can be

called a rule-of-law state, there has been some progress at the

corporate level, largely because of the FCPA and its progeny.

During my time there, I saw the development of an incipient

compliance culture. In 2008 no one talked about compliance,

and there was no Russian word for it. But by 2013 Russia had

adopted a law essentially requiring companies to have compli-

ance programs.

The current Russian-language version of Wikipedia contains

an entry on “komplayens” (in Cyrillic transliteration), which

states: “Today, compliance with standards (komplayens) is an

area of professional activity that has been brought to Russian

organizations by major Western companies.” During the same

time, Russia acceded to the OECD Working Group on Bribery

and passed legislation to bring itself into conformity with the

requirements of the OECD Anti-Bribery Convention.

All of this has a real effect on a day-to-day basis. While work-

ing at Embassy Moscow, I taught classes on the FCPA for a local

law school that offers a U.S. master of laws (LLM) degree. The

classes were attended primarily by young Russian lawyers work-

ing in Russian companies or law firms, or Russian branches of

international companies and law firms. After lectures, students

often approached me with questions about the FCPA implica-

tions of transactions that they were working on. On several

occasions, they told me that they had used what they learned in

the course to persuade their clients or employers not to proceed

with possibly corrupt transactions. In other words, bribes were

not paid because of the FCPA.

Since I joined the law firm Baker & McKenzie in 2012, we

have frequently been retained by local companies in the former

Soviet Union seeking assistance in establishing compliance pro-

grams that meet international standards. Some do this because

they are listed on U.S. exchanges. Others recognize that having

a good compliance programmakes it easier for them to attract

foreign partners. Many recognize that anti-corruption compli-

ance is good for business: internal controls that prevent bribery

also help companies avoid internal fraud and embezzlement

and unscrupulous business partners.

Spread of the “Compliance” Culture

The processes that I have witnessed in Russia and the former

Soviet Union are by no means unique. Under the influence of

the OECD’s Working Group on Bribery, the U.N. Convention

Against Corruption and other international institutions, many

other countries that had no concept of anti-corruption compli-

ance 10 years ago have now adopted aggressive anti-corruption

Advocating compliance with

the FCPAmakes the point that

corruption is a two-way street

and requires cooperation

between the country of the

bribe giver and the country of

the bribe receiver.