In a global world, where countries are becoming more and more integrated through trade, financial flows, and technological advances, we mustn’t stay only with the local reality and look at what is happening outside our borders, because without knowing it, certain actions or laws that are dictated in a certain place, can influence us, or give us the guidelines to follow if necessary. And the recent announcement by the U.S. Department of Justice (DOJ) on compliance is a good example that we should pay attention to.
In September, the DOJ unveiled the immediate steps with which they will address corporate crime. While these apply to that country, they should also be considered by the rest of the world, given the Foreign Corrupt Practices Act (FCPA), which can convict individuals and companies no matter where they are located.
The measures focus on strengthening compliance programs to deter misconduct, applying incentive systems to prevent malpractice, and giving credit to those who voluntarily report wrongdoing and cooperate with investigations. To do this, the company must demonstrate that it is doing everything possible to prevent corruption and/or remedy malpractice. It must therefore have robust and effective compliance programs in place.
Thus, for the DOJ, the focus will be on pursuing individual liability, i.e., those who commit corporate crimes and benefit from them, regardless of position, position, or seniority. This, precisely, aims to ensure that compliance programs are put into practice and that they do not remain on paper, just to comply with the law. If we go to a concrete example in Chile, Corpesca would not have been convicted as a legal entity if it had demonstrated the effectiveness of its compliance program, and we would only have seen those directly responsible for the offenses being convicted.
To have a truly implemented compliance program, first, it must be understood that all departments of the company must contribute to it because the risks are not in the compliance area, but in those that deal with customers, suppliers, public officials or handle finances. It is therefore essential to detect immediately if a policy or procedure is no longer complied with, either because it has become obsolete, the person in charge of the process has changed or circumstances have changed.
A good example was the pandemic, which came to break paradigms and disrupts the established, making us overcome various difficulties, even to this day. In this period, there has been no company that has not changed or has not had to adapt, and it is in this context that continuous monitoring becomes more relevant.
Thus, in 2020, as soon as teleworking and virtuality began, many companies quickly adapted to continue operating, ceasing to comply with pre-established processes that were face-to-face, such as petty cash authorizations, but which were necessary given the complexity of the moment.
It is not wrong to change, the important thing is to define the new process immediately, so as not to generate gaps that may affect the company in the future, and that will be known years later. In that case, we will not be able to explain that it was because of the pandemic or because the process had just changed.
For this reason, when it comes to the possibility of skipping controls, whether due to emergencies or exceptions, it is essential to have visibility of HOW the processes are being carried out, and if we realize that we are no longer complying with them -because they no longer conform to the new reality-, then we must change them and make it clear. Failure to comply with a process does not mean that a crime is being committed.
We must be aware that temptations are the order of the day, and that in a time of crisis it is easier to fall into them, causing the barriers of what is permitted to be crossed, processes to be disordered and policies and controls to be overlooked.
A well-implemented compliance system will not only be a company’s insurance in case a crime occurs but will also support it in case of an emergency or an abnormal situation. Therefore, if there is no order, if the exception becomes the rule, if there is no compliance program that monitors the practices that are carried out, that ensures that the established controls are respected or that they are skipped for some reason and a certain period, it is possible to fall into crimes.
That is why the DOJ’s announcement on the strengthening of compliance is an opportunity for companies around the world that have the real purpose of preventing crimes and demonstrate that this commitment is real and not a mere formality to comply because the paper holds a lot, but reality always imposes itself. And let us not forget that in a global world, sanctions are also global.
Column by Susana Sierra
Published in El Mostrador
