A spy firm and an institute that measures corporate ethical standards have collaborated on an anti-bribery and anti-corruption survey with a distinctly American slant, although its respondents hail from all over the world.

Kroll and Ethisphere have collected 267 responses from senior executives working in ethics, compliance, and/or anti-corruption departments, 13% of which came from the world of financial services. 22% held the title of compliance and ethics officer, followed by chief compliance officer and executive, senior, or vice president (13% each). A wide range of other titles trailed closely behind, all of them related to compliance or anti-corruption activities.

The programmes of probity

The report is riven with allusions to 'compliance programmes' and 'anti-bribery and corruption programmes,' which are presumably plans of action of some kind in these areas. More than half (54%) of respondents said that their boards of directors were playing active parts in these programmes, with 48% saying the same of their CEOs. Substantial numbers of respondents could not, however, say whether their boards (33%) or CEOs (26%) were involved, making their co-ordination seem somewhat chaotic.  In 86% of companies, the person most often cited as playing a leading part in the development of such a programme was the chief financial officer. This, the report-writers thought, might be directly related to the respondents' belief that they were finding it easier to detect 'books-and-records violations' than in previous years, although they did not define this term. Indeed, they found that three-quarters of respondents who did not know whether their CFOs were involved in the programmes expressed a lack of confidence in their ability to detect such infractions. They also detected a growing feeling that the finance and compliance functions at firms ought to co-ordinate their anti-bribery and corruption efforts well.

A majority of respondents thought that factors outside their companies were going to pose the biggest risks to their anti-corruption programmes over the remainder of 2016. They thought that they lacked resources and that they were not monitoring things well enough.

Personal liability

In the summer of last year the US Department of Justice published the so-called Yates Memorandum, which it designed to ensure that all its attorneys were consistent in their best efforts to hold to account the individuals responsible for illegal corporate conduct, both civil and criminal. There are six important things that it thinks ought to happen in an investigation.

• In order to qualify for any 'co-operation credit,' an undefined term that presumably refers to deferred/non-prosecution agreements and the like, corporations must give the DoJ all relevant facts relating to the individuals responsible for the misconduct in question.
• Criminal and civil corporate investigations should focus on individuals from the start, even though one might think that the main point of a civil investigation is to recover assets.
• Criminal and civil attorneys handling corporate investigations should be in routine communication with one another.
• The DoJ will not release culpable individuals from civil or criminal liability when resolving a matter with a corporation, although the let-out proviso for this point is so broad (in the absence of "approved departmental policy," in other words it only applies when the department wants it to apply) as to make it meaningless.
• The DoJ's attorneys should not resolve matters with a corporation without a clear plan to resolve related individual cases, and should 'memorialize' any declinations as to individuals in such cases.
• Every civil attorney should focus consistently on individuals as well as companies and decide whether to sue them. In doing so in each case he should consider more than just the individual's ability to pay.

In relation to this, 29% of respondents to the survey said that they were more concerned with personal liability than they were in previous years, although the compilers were surprised that the Yates Memo (which has been the subject of a thousand 'thought leadership' pieces since its publication) had not pushed this up higher.

There is a strong correlation between respondents who expressed the most concern about their personal liability in the immediate future with organisations that have wholly de-centralised anti-bribery and corruption policies and decision-making processes. Only 19% of respondents from organisations with centralised processes were more concerned about personal liability over the next few months; 52% from organisations with de-centralised processes were more concerned.

Global expansion and third-party relationships

The report mentions 'global expansion' many times, although this does not appear to have anything to do with the world growing larger. Instead, it seems to refer to companies extending their services all over the world, although it stops maddeningly short of actually saying this. One single clue, however, comes in the report's assertion that such expansion brings with it a swelling in the sheer number of "third-party relationships," i.e. relationships between first parties (firms) and with correspondents, contractors and introducers rather than second parties (customers).

Under half of respondents (40%) believe that the risks they run in respect of bribery and corruption will increase this year. Their reasons for this include their own "global expansion" (55%), increases in the numbers of "third-party relationships" (54%), and a more onerous enforcement of existing regulations (51%).