Avoiding risk of corporate bribery

Those ramifications, as we have seen from recent examples in the pharmaceutical sector, include enormous damage to global reputations, sales inside and outside China and share price, as well as the more direct impact on individuals and corporations in terms of fines, disgorgement of profits and potential imprisonment. The means of investigation are also quite different from what Westerners may be used to: The Chinese authorities have wide power to restrict the movements of those under investigation and they use them regularly. In the most serious cases, individuals can find themselves the subject of lengthy interrogation.

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And just because an issue may have occurred in China, and may be investigated and perhaps prosecuted in China, that won't necessarily be the end of the story. There is no international double-jeopardy principle: If a business (or individual) commits wrongful acts in one country and those acts fall under the jurisdiction of multiple prosecuting authorities in multiple jurisdictions (perhaps because of where the acts occurred, or where the company is registered or has listed securities), few countries offer protection against the risk of their authorities investigating and punishing those same acts (the United Kingdom is a notable exception).

Even if the same offense is not prosecuted in multiple jurisdictions, a bribery offense in China may entail money laundering, false accounting or even tax-related offenses elsewhere, which might be separately prosecuted and may entail wrongdoing by other entities in the corporate chain, depending on what happened to the money and who benefited from the bribery. At a time of increasing cooperation and information sharing between enforcement authorities around the world, this risk is heightened.

Conversely, there have been a number of recent high-profile US Foreign Corrupt Practices Act enforcement actions involving global pharmaceutical companies' activities in China, as well as the much-publicized UK investigation into Rolls-Royce's Chinese operations. There is nothing to stop the Chinese authorities from opening their own investigations into those same matters and taking appropriate action to enforce the law.

While some companies may take the view that the risk of the US or UK authorities investigating allegations relating to activities in China is remote, that view may be increasingly misguided. The risk that the US and UK authorities may learn of - and investigate - wrongdoing committed abroad by those under the jurisdiction of the US Foreign Corrupt Practices Act or UK Bribery Act, should not be ignored. In 2012, the US Securities and Exchange Commission received more than 300 whistleblower complaints concerning bribery. Many of those came from outside the US - 27 from China.

Moreover, authorities around the world are forging closer ties and cooperating to assist each other in their investigations of financial and other crimes. The UK Serious Fraud Office, which is the UK's lead enforcement agency for prosecuting overseas corruption, regularly reports on the close cooperation it has with overseas authorities to share information and obtain and give assistance in investigating fraud and corruption. It recently signed a memorandum of understanding with its Chinese counterparts to facilitate that cooperation.

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