Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. Heightened U.S. and International Scrutiny.
    1. For the last decade, the DOJ and SEC have aggressively pursued enforcement of the FCPA, and U.S. authorities have developed creative methods to resolve criminal cases, including deferred prosecution agreements where the violator is required to pay a substantial fine, employ a monitor to oversee its compliance program, and cooperate with U.S. authorities.
    2. Many countries, including Indonesia, France, India, Germany and Costa Rica, have also adopted a vigorous stance against transnational bribery, particularly when their own national interests are at jeopardy.
  2. Increasing Fines and Sanctions
    1. In recent years, penalties have been steadily and dramatically increasing, reaching a record high of $44 million this year.
      1. Pursuant to its plea of guilty on April 26, 2007, Baker Hughes, an oilfield contractor, and its subsidiary, Baker Hughes Services International, agreed to pay $44 million in combined fines and penalties to settle proceedings alleging bribery of officials in Kazakhstan’s national oil companies.
  3. Substantially Increased Risk of Exposure for Those Who Do Not Take Internal Controls Seriously.
    1. Recent cases have shown that U.S. authorities have prosecuted companies for internal controls violations as vigorously as for bribery schemes.
    2. Companies without adequate internal control mechanisms in all jurisdictions in which they conduct business are increasingly vulnerable to both civil and criminal liability both in and outside U.S. territory.
    3. Moreover, internal controls violations will not only implicate the FCPA, but also the Sarbanes-Oxley Act of 2002, which requires, among other things, certifications by chief executive officers of public companies that the company’s books and records are accurate and the internal controls are sufficient.

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