MOVING TOWARD YELLOW: HOW TO CREATE A UNITED FRONT TO CONVEY ANTI-CORRUPTION MESSAGES1
| Jurisdiction | Derecho Internacional |
(Apr 2013)
MOVING TOWARD YELLOW: HOW TO CREATE A UNITED FRONT TO CONVEY ANTI-CORRUPTION MESSAGES1
Senior Attorney, Noble Energy Inc.
Houston
Peter A. Hutcheson
Associate General Counsel, Noble Energy Inc.
Houston, TX
ZULMA WARD is a Senior Attorney for Noble Energy, based in Houston, Texas, where she provides legal transactional advice and support for Noble Energy's International major projects in Latin America, West Africa and the Mediterranean. For the last decade, she has provided advice for numerous worldwide upstream and power generation projects. She has experience in implementing anti-corruption and compliance programs for Noble's various international locations and with foreign governments. Zulma received her law degree from La Universidad del Rosario (Colombia) and an LLM from the University of Houston, Texas. Her legal education includes training in both civil law and common law and she is admitted to practice law in New York and Colombia.
PETER A. HUTCHESON is the Associate General Counsel, International for Noble Energy Inc. From Noble's headquarters in Houston Peter leads a legal team responsible for all legal work associated with Noble's upstream oil and gas business in Israel, Cyprus, Equatorial Guinea, Cameroon, Sierra Leone, Nicaragua, The Falkland Islands, China and all international new venture opportunities and activity. Peter graduated from the Ivey School of Business in 1993 with an Honors Business Administration degree and completed his JD at the University of Western Ontario in 1996. Peter was called to the Ontario Bar in 1998 and the Alberta Bar in 2001. Peter joined Noble in May of 2012 after 11 years with Petro-Canada/Suncor split between their Calgary and London UK offices. In addition to Peter's current responsibilities at Noble he has upstream legal experience in Libya, Syria, Trinidad & Tobago, Venezuela, Norway and The Netherlands. Peter's experience also includes international compliance, securities and corporate & commercial law.
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Table of Contents
I. Introduction.
II. Practical Considerations
A. Speak the Same Language.
1. Be Sensitive to Cultural Nuances in the Language.
2. Get a Good Translation.
B. Be Aware and Knowledgeable of the Recipient's Culture.
C. Get the Local Government Involved.
1. Use the Local Government as an Ally.
2. Lean on Local Regulations.
D. Build the Training Foundation on International Law and Treatises.
E. Count on Your Service Providers, They Are the Face of Your Project.
1. Prepare Contractors and Service Providers.
2. Involve Local Counsel.
3. Get the Assistance of Headquarters Management and the Employees From Your Foreign Locations.
III. Conclusion0
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I. Introduction.
Worldwide, countries have been admirably fighting corruption since the passage of the Foreign Corrupt Practices Act ("FCPA"),2 and the United States is one of the pioneers. Presently, there has been a special focus on the international energy and mining industry as can be seen in the latest Department Of Justice action against Kellogg Brown & Root, Inc. ("KBR") - Technip S.A3 and Panalpina.4 The operations of the energy and mining sector and its service providers have been exposed to what is a wide variety of approaches and ranges of punishable conduct for corruption from different jurisdictions. For example, in China the presumption that a benefit received by a government official was corrupt is limited to whether or not it gave a benefit for the foreign official, while in the United Kingdom there is not a presumption that the benefit received to a foreign official was corrupt.5 The wide variety of approaches which the anti-bribery authorities have taken around the world has had some impact on U.S. companies who are subject to the limits drawn by the FCPA in their business development and new ventures opportunities in some jurisdictions around the world.6 In comparison, non-U.S. companies are often subject to more lax regulations and enforcement given in other parts in the world.
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Even though there are all of these regulatory bodies in place and there is the desire to bring their anti-corruption messages to different jurisdictions, the map issued by Transparency International7 in recent years show that there has been no dramatic change. "There are lots more foreign investment and globalization trends, but in so many years, orange is still not predominant".8 For the last three years, a number of countries have found that moving from red, which signifies dangerous corruption levels, to a more favorable orange or yellow, has not been as fast a process as expected. Only a few countries have moved from red to orange, such as Brazil and Mongolia, and only one or two from orange to yellow, such as Switzerland.9
The international energy industry faces significant challenges doing business successfully in the context of these corruption patterns. A country's level of corruption has become a determinative element of risk, leading foreign investors to reconsider whether or not a project's risks and rewards are balanced enough in favor to pursue.10
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Although anti-corruption and anti-bribery regulations are becoming more standardized,11 they are also becoming more stringent worldwide.12 This may be seen in the United Kingdom Bribery Act ("UK Bribery Act"),13 which in some respects goes beyond the FCPA.14 For example, while the FCPA allows for facilitating or expediting payments,15 the UK Bribery Act, as well as legislation passed in other jurisdictions that in the past did not provide a clear carve out for such payments, now expressly bans them.16 Many other countries, such as in Brazil, Mexico, Israel, China and Russia,17 are going through a strengthening process to the point that they have completely prohibited all kinds of payments to government officials to expedite any kind of processes unless expressly authorized by the law or administrative ordinance. This transition from standardized to stringent may take a long time, but the trend is evident.
International investors can take comfort in the creativity and resourcefulness that have become a significant part of the multinationals' compliance programs. In particular, multinational companies are becoming more local in their training and enforcement. Rather than using confrontational, lecturing processes, they are using the recipients of the information to help teach that information and the importance of anti-corruption efforts. By going local, companies can proactively move the compliance program from red to yellow to reach the goal of transparency. The following practical considerations include techniques, tools, and processes that may be instrumental, and immediately available, to multinationals seeking transparency while doing business abroad.
II. Practical Considerations
A. Speak the Same Language.
One of the bigger challenges that professionals have to confront when dealing in the international arena is the language barrier. Companies sometimes do not make sufficient efforts to use precise, local language in their compliance programs. While much of Latin America is Spanish speaking, for example, the numerous variations in Spanish can create unanticipated ambiguities, if not insults. Sensitivity to local usage is critical in ensuring successful compliance programs.
1. Be Sensitive to Cultural Nuances in the Language.
As there are many ways to say "hello" in most languages, so there are many ways to deliver the anti-corruption messages. The tone, words and body language are an integral part of a company's compliance training, so companies must use precise, adequate, clear, and customized language to present, explain, and deliver the anti-corruption message to the audience. Presenting and explaining the relevant laws and regulations to a foreign receptor is better done by using that specific locale's own language and by connecting the law and regulation concepts to common colloquialisms, which will engrave the concept on the recipient's mind.
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For example in India there are more than a few commonly used phrases in both Hindi and Urdu for asking for a bribe: Chai-Nashta ("tea and snacks"), Kharcha Paani ("commission", or literally, "money to spend for water and food") and Suvidha Shulk (a "convenience fee"). In China, however, the term "bribe" has different ways to be expressed such as Touliang huanzhu ("robbing the beams to put in the pillars") and Maiguan, a new word in the Chinese dictionary, which means "To buy a government promotion". 18
Training the local audience by using the specific expressions when presenting an anti-corruption program creates a tight connection between the punishable conduct under the company anti-corruption compliance program and their day-to-day usage. Not only is precise local language important, but exact translations are also indispensable to good training.
2. Get a Good Translation.
The company compliance team must ensure that 1) the translation of the policies and regulations are accurate for each specific country, 2) the appropriate terminology and names are used, and 3) the level of technicality of the message matches the sophistication and knowledge of the audience. For example, a Spanish word in one culture for "bribe" can be offensive or convey a joke in another. A message using acceptable language in one setting can be too highbrow if delivered to the general public or local communities.
...To get an accurate and specifically targeted translation, companies should, to the extent possible, use a translator who knows and understands the subject, the native language, and the culture to achieve a desirable message. If it is not possible to get all of these qualifications in one, form a team that can exchange ideas, concepts and perceptions on how the message is being
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