Contributing Lawyers


Cyndee Todgham Cherniak

United States

Susan Kohn Ross


Andrew Hudson

Predictions: Enforcement of Anti-Bribery Rules to Be Priority

I have come across a posting on wrageblog setting out the top ten trends for anti-bribery enforcement in 2009.  The list set out below comes from the DOJ’s Mark Mendelsohn and summarizes what was said at an anti-corruption conference in Frankfurt involving a number of countries.  The list is not so much as a prediction as an informed warning for multinational companies.  And, let's be honest -- with the stimulus packages being announced around the world and the huge government infrastructure projects that are being announced -- the risk of bribery for some of those billions of dollars in spending is out there.  But, most of the stimulus packages involve accounting.  Many of the countries have money laudering and reporting rules.  The flow of these stimulus funds will be watched carefully.  The risk of investigations is higher than ever before.  Even law-abidding companies are going to be watched very carefully and should be mindful of the rules.

Top Ten trends in Anti-Bribery Enforcement for 2009

1. The level of enforcement is at an all-time high and is likely to remain there.

2. Prosecuting senior company executives in their individual capacities will be a priority.

3. The US will investigate US and foreign issuers equally, as well as companies operating with US territory.

4. Multi-jurisdictional investigations are on the rise.

5. Informal international cooperation will continue to improve, together with increased mutual legal assistance.

6. The DoJ and FBI are committing more resources to FCPA enforcement, including eight full-time, dedicated FBI investigators.

7. The DoJ will coordinate, where appropriate, sector-wide investigations, as it has in the oil and gas, medical devices and freight forwarding industries.

8. The pace of voluntary disclosures is likely to continue.

9. FCPA due diligence will be a regular feature of mergers and acquisitions and transactional work.

10. Increased enforcement of other crimes, alongside FCPA violations, is expected, including money-laundering, export controls violations and false accounting.

As recently posted on Trade Lawyers Blog, Canada is enforcing its own anti-bribery laws.  Canadian companies engaging in international trade with foreign governments should enact a compliance program --- we can help.  Foreign companies engaging in trade with Canada should also enact a compliance program and incorporate rules under Canadian law.  Some law-abidding companies may say they do not need to hire a lawyer to provide an opinion about Canada's anti-bribery laws -- think again -- having it in your policy may stop an investigation and not having proof that Canada's laws have been reviewed may cause the investigators to dig deeper.  Please call Cyndee Todgham Cherniak 416-307-4168.

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