SINGAPORE has long been admired for its tough anti-corruption stance and is exemplary for its strict enforcement regime against corrupt practices. In Transparency International's (TI) Corruption Perceptions Index 2016, Singapore was ranked seventh in the world as one of the least corrupt countries, one place higher than its ranking in 2015's index.
Hence, it is not surprising that high-profile corruption cases involving Singapore companies attract close scrutiny both locally and internationally, and more so when a government-linked company is involved. A case in point is the recent disclosure on Dec 23, 2017 by Keppel Offshore and Marine (KOM), a Singapore government-linked company, of its global resolution with the criminal authorities in the United States, Brazil and Singapore to pay more than US$422 million in fines, following investigations into corrupt payments made overseas.
It was reported that KOM made bribes amounting to about US$55 million between 2001 and 2014 in order to secure 13 contracts from Brazilian oil firms. These bribes were disguised as large commissions to a Brazilian consultant, who in turn made payments to people who could influence the awarding of the 13 contracts.
LEADING BY EXAMPLE
KOM's failure to detect the payment of bribes by its Brazilian consultant for more than a decade raises an important question as to how Singapore companies, which have foreign subsidiaries or engage in business overseas, can safeguard themselves against overseas corporate corruption. In this regard, Singapore companies need to reassess three key areas: corporate culture, standard operating procedures and environment scanning.
While every Singapore company is expected to have written anti-bribery and corruption policies, they must be reinforced by the leadership of the company. The top management of any company, whether listed or otherwise, must lead by example and inculcate as one of its core values, a deep-seated belief in the company's employees that corruption must not be accepted or tolerated, or what is commonly referred to as a "zero-tolerance policy towards corruption".
The rationale for emphasising this core value is obvious: corruption will destroy the company's reputation, diminish demand for its products and services, and erode its ability to compete in the long term. The company and the individuals involved in corrupt practices will also be subject to criminal liability. As the KOM case demonstrates, corrupt acts have no expiry date and can come back to haunt the company.
The KOM case is also a timely reminder for Singapore companies to review their standard operating procedures to root out potential corrupt practices.
For example, does the company have a written manual to guide their employees on how to comply with anti-corruption laws (including those with long-arm jurisdiction such as the US Foreign Corrupt Practices Act)? If so, can certain aspects of the manual be improved? Some of the key issues to be considered are:
- Does the scope of acts of corruption and bribery covered in the manual extend to acts performed by employees of overseas subsidiaries as well as contractors, agents or suppliers engaged by overseas subsidiaries?
- Are due diligence checklists provided to ensure that the appropriate checks are conducted on third-party partners, namely, contractors, agents or suppliers engaged by overseas subsidiaries?
- Is there a clear whistle-blowing policy to be adopted when corruption or bribery by a colleague or a third-party partner is detected?
- Are there restrictions on giving and receiving of gifts, entertainment and hospitality to or from customers and third parties?
- Are there rules to govern the keeping of financial and accounting records and the placement of internal financial controls?
- Is there a defined procedure for reporting to the company's management of any suspected corruption or bribery involving the company?
Singapore companies must appreciate that different countries have different operating environments, and conduct a risk assessment as to whether the foreign country which they intend to operate in is corruption-prone. TI's Corruption Perceptions Index is a good starting point for conducting the risk assessment.
Another factor to consider is the possible areas of the company's overseas operations where corruption or bribery may occur. In undertaking the risk assessment, ways to address such potential gaps should be examined.
If appropriate, separate standard operating procedures on anti-bribery and corruption should be drafted to tailor to the operating environment of the particular foreign country in question. These procedures can also be used as a regulatory tool by the company's headquarters to monitor the conduct of their employees and their third-party partners, through carefully calibrated checks and other reporting measures.
Although it may be tempting to think that a lower standard of corporate corruption applies in certain countries where corruption is rife and the enforcement regime is weak, this view is seriously mistaken. The existence of long arm anti-corruption laws and the growth of international cooperation among the authorities of different countries mean that it is only a matter of time before corrupt practices overseas are detected and perpetrators are taken to task.
To put it succinctly, in order to curb corruption, ethical standards must be established by the management in active partnership with the company and its employees. Corruption thrives on human frailties accompanied by lack of supervision and controls. Ethics, when ingrained in the culture of an organisation, is the best bet to counterbalance these human frailties and oversight.
A simple guide such as "Do what is right especially when no one is looking" can be a good start. Singapore companies must remain steadfast to Singapore's anti-corruption policy which applies to their operations both locally and overseas, and not trade it for short-term competitive advantages by succumbing to the lure of corruption and bribery.
- The writers are managing partner, RHTLaw Taylor Wessing LLP, and consultant, RHT Forensics & Disputes Advisory, respectively