I didn’t think so, China SOE developments, additional material for the reading pile, and the best part of the Olympics starting. It’s all here in the Friday roundup.
I Didn’t Think So
Will tinkering with advisory guidelines that are only implicated when a business organization pleads guilty to or is convicted of a crime best incentivize FCPA compliance, best advance the FCPA’s objective or reducing bribery, increase public confidence in FCPA enforcement actions and allow the DOJ to better allocate its limited prosecutorial resources to cases involving corrupt business organizations and the individuals who actually engaged in the improper conduct?
I didn’t think so, but see here for a recent post on Corruption, Crime and Compliance by Michael Volkov.
What will better achieve each of the above desirable objectives? See here for my scholarship “Revisiting a Foreign Corrupt Practices Act Compliance Defense.”
China SOE Developments
Probably one of the most unhelpful statements ever made by an enforcement official concerning the “foreign official” / ”instrumentality” issue was when SEC Chairman Mary Schapiro stated (see here for the prior post) that “given the various forms of government found around the world, it would be impractical to articulate each of the myriad of ways that one could use to identify a foreign official in particular countries or cultures.” Two developments this week concerning China SOEs reminded me of Schapiro’s statement.
First, as numerous financial publication headlines indicated, China’s state-owned Cnooc Ltd. announced a $15.1 billion takeover offer for Canada-based Nexen Inc. Should the transaction close, the acquisition would give Cnooc ”operational control of a significant Canadian oil-sands field operator” and “catapult it into the driver’s seat in some of the Western world’s richest frontiers, from the U.S. Gulf of Mexico to the North Sea.” (See here for the WSJ article).
Second, earlier this week China Investment Corporation released its annual report (here). Notably, the annual report begins as follows. ”In 2011, China Investment Corporation continued to invest on a commercial basis to seek long-term returns and prudently manage our fully deployed portfolio.” (emphasis added). The annual report highlights direct investments in Canada, the U.K., France, Russia, Trinidad & Tobago, Brazil, South Africa, Vietnam and Australia.
For the Reading Pile
If this recent Summer Reading Spectacular post wasn’t enough to quench your thirst for FCPA information, there is more.
This recent FCPA Update from Debevoise & Plimpton contains a timely article in the aftermath of the dramatic collapse of the Africa Sting cases and the Lindsey Manufacturing prosecutions titled “The Difficulty of Recovering Damages From the Government When an FCPA Prosecution Misfires: Sovereign and Official Immunity and Their Impact on FCPA Compliance.” The conclusion states as follows. “Although success in an FCPA litigation is obviously a relief for corporate and individual defendants, FCPA defendants face enormous obstacles when it comes to recovering the significant costs associated with defending themselves against government enforcement actions.”
Arnold & Porter recently published this ”FCPA, Bribery Act & Other Global AntiCorruption Insights.” The comprehensive nearly 50 page document contains key enforcement and investigative developments, global enforcement and investigative developments, as well as a focus on FCPA reform.
The best part of Olympics starting?
No more client alerts, marketing material, etc. warning of the Bribery Act / FCPA risks of entertaining clients or prospective clients at the Olympics.
Keep an eye out for the Rio Tinto sponsored Mongolian Olympic team (see here for the prior post).
A good weekend to all.