anti-corruption enforcement in china on the...

Anti-Corruption Enforcement

in China on the Rise Minimizing Risk of FCPA and Chinese Law Violations and Responding to Investigations

Today’s faculty features:

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TUESDAY, MARCH 5, 2013

Presenting a live 90-minute webinar with interactive Q&A

Michael S. Diamant, Partner, Gibson Dunn & Crutcher, Washington, D.C.

Robert Hunt, Partner, Herbert Smith Freehills, Hong Kong, China

Michael Li-Ming Wong, Partner, Gibson Dunn & Crutcher, San Francisco

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FOR LIVE EVENT ONLY

Webcast: Anti-Corruption Enforcement in China

Robert Hunt

Michael S. Diamant

Michael Li-Ming Wong

March 5, 2013

<Presentation Title/Client Name>

Topics To Be Discussed

I. Corruption Risks in China

II. Chinese Anti-Corruption Laws

III. FCPA Enforcement and China

IV. Coordination Between U.S. and Chinese Authorities

V. Compliance Strategies for Mitigating Corruption

Risk in China

5








Risk in China

6


Predominant risks of operating in China Third-Party Risk

• Organizations often enter the Chinese market through joint ventures with local parties. Local requirements, lack

of infrastructure and language/cultural differences lead to the frequent use of third-party sales agents and

consultants. Use of these third party agents without conducting appropriate due diligence increases corruption-

related risk.

Culture of Gift Giving

• Gift giving is a prevalent social custom in China and cultural mores related to gift giving differ from Western

countries. Multinationals often experience difficulty making distinction between a “gift” and a “bribe.”

Travel Expenses

• Requests for travel from PRC government officials is common in China. The potential for abuse is significant.

• Notably, the use of travel agents to make kickbacks is becoming a more common practice and accentuates third-

party risk that can arise in connection with travel requests.

Ubiquity of “Foreign Officials”

• FCPA’s broad definition of “foreign official” encompasses all employees of state-owned entities (“SOEs”).

• The bulk of China’s domestic market is still composed of SOEs; more than 200,000 across a broad range of

industries.

• SOEs such as Sinopec and CNOOC have shares listed in New York.

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Risk in China

8


Chinese Anti-Corruption Laws

Chinese law punishes both the giving and taking of bribes.

1. Official Bribery

2. Commercial Bribery

3. Foreign Bribery

9


PRC’s domestic legal landscape

China has two primary pieces of anti-corruption legislation: the Criminal

Law and the Anti-unfair Competition Law. They cover:

Public sector bribery :

• Accepting bribes by or giving bribes to “State personnel” to seek illegitimate

benefits

“State personnel” include all personnel working in SOEs

• Giving bribes to foreign officials or officials of international public organization to

secure illegitimate commercial benefits (May 2011 amendment to the Criminal

Law)

Private sector bribery:

• Accepting bribes by or giving bribes to private sector individuals or entities to

secure illegitimate benefits

10


PRC’s domestic legal landscape

Key concepts under the Chinese law:

What constitutes a bribe?

• Anything of value with no de minimis exception. In practice, however:

Low value meals or reasonable travel expenses offered in the course of normal

social networking activities should be less likely to fall foul of the law

What are the penalties?

• Bribery of State personnel – maximum life imprisonment plus fine; confiscation of

property and illegal proceeds may also be imposed

• Bribery of private individuals – maximum 10 years of imprisonment plus fine;

confiscation of property and illegal proceeds may also be imposed

11


China: Anti-Corruption Enforcement Agencies

Public Security Bureau (Law Enforcement)

Central Commission for Discipline Inspection

Supreme People’s Procuratorate (Prosecutor’s Office)

State Council (Government Agencies)

• Ministry of Supervision

• State Administration for Industry and Commerce (SAIC)

12


“A great deal of facts tell us

that the worse corruption

becomes, the only outcome

will be the end of the party

and the end of the state! We

must be vigilant!”

-Xi Jinping, Communist Party

Chief (11/19/2012)

China’s Anti-Corruption Enforcement: The New Regime

13

<Presentation Title/Client Name> <Presentation Title/Client Name>

China’s New Leadership Brings Changes in Anticorruption Laws and Enforcement

Recent changes to anti-bribery laws and policies include:

• Limits on party officials • Increased criminal prosecutions • Incentives for confessing to bribery • A new five-year plan • Asset disclosure for public officials

14

<Presentation Title/Client Name> <Presentation Title/Client Name>

PRC’s recent enforcement trends

The Chinese authorities’ enforcement tends to focus on the demand / receipt side

of bribery (passive corruption), particularly involving State personnel. Between

2003 and 2011, it is reported that more than 42,000 CPC members faced

corruption charges.

But employees of foreign corporates have also been targeted for receiving bribes.

And now China’s highest court and top prosecutorial body has issued a joint policy statement

regarding enforcement of PRC anti-corruption laws against bribe-givers. The policy statement:

• does not substantively change the legal requirements of the PRC anti-corruption prohibitions;

• focuses on which bribery offences will be subject to increased criminal penalties; and

• may signal a new enforcement priority against bribe-givers in the PRC.

15


Recent Chinese Corruption Headlines

Foxconn Begins Bribery Investigation

“The company said last week that an internal

investigation had uncovered possible wrongdoing in the

supply chain and that those findings had been shared

with the authorities in China.”

“Foxconn, which is based in Taiwan but has production facilities throughout China, did not offer details about the nature of the investigation or how the problem was uncovered. But last week, the Taiwan edition of Next Magazine reported that a Foxconn executive in the coastal Chinese city of Shenzhen had been detained by the police on bribery allegations.” -The New York Times, 1/13/2013

“Tao Liming, Chief Executive of the Postal Savings Bank of China (PSBC), China’s sixth largest commercial bank, was officially arrested on corruption charges at the end of December, after being held for several months.” “The charges for his arrest included issuing illegal loans, taking bribes, and illegal fund-raising . . .” -The Epoch Times, 1/7/2013

Chief of Top Chinese Bank Arrested for Corruption

Bo Xilai Ousted from Communist Party “China’s Communist leaders have dealt a hammer blow

to the disgraced politician Bo Xilai, expelling him from

the party and accusing him of everything from corruption

to improper sexual behaviour . . .”

“The state news agency Xinhua said the flamboyant

leader now faced criminal charges. It alleged that he took

huge bribes and abused his power . . .”

-The Guardian, 9/29/2012

Former Provincial Official Sentenced to Death for Bribery

“A former provincial official in east China's Jiangxi

Province was sentenced to death with a two-year reprieve

for taking bribes, a court heard on Wednesday.”

“He helped bribe-givers benefit from projects and

assisted them with job transfers and promotions by

taking advantage of his post, said the prosecutors.”

-Xinhua, 12/19/2012

16


Chinese Anti-Corruption Enforcement

660,000 By the Numbers:

Number of officials found guilty of

disciplinary violations over the past

five years

18,100 Number of Chinese officials punished

for corruption concerning construction

projects during the past three years.

30,000 Number of business-to-business

corruption cases investigated by the

Administration of Industry and

Commerce over the last five years.

“We must uphold the fighting of tigers and flies at the same time.”

- Communist Party Chief Xi Jinping, in a January 2013 statement indicating that he would target both low level and

high level officials.

17


Chinese Anti-Corruption Enforcement

Industry Focus:

Health Care: Investigations focused on hospital

officials in Southern and Western China accused

of taking kickbacks from distributors of medical

devices and drug manufacturers.

Banking: Bank presidents from China’s “Big

Four,” as well as those from institutions serving

low-income clients, have been prosecuted in

recent months.

Real Estate Development: High-level officials

have recently been prosecuted for accepting bribes

in exchange for favorable treatment in land acquisition and development deals.

18








Risk in China

19


An Overview of the Foreign

Corrupt Practices Act

(“FCPA”)

20


Overview: FCPA What is the Foreign Corrupt Practices Act?

• Anti-Bribery Provisions: The FCPA prohibits corruptly giving, promising, or

offering anything of value to a foreign government official, political party, or party

official with the intent to influence that official in his or her official capacity or to

secure an improper advantage in order to obtain or retain business.

• Accounting Provisions: The FCPA also requires issuers to maintain accurate

“books and records” and reasonably effective internal controls.

The FCPA was enacted in 1977 in the wake of reports

that numerous U.S. businesses were making large

payments to foreign officials to secure business.

21


Overview: FCPA (cont’d) Who is covered by the FCPA?

• Issuers: Any company whose securities (including level two and level three ADRs

and registered debt) are registered in the United States or that is required to file

periodic reports with the SEC.

• The FCPA also applies to stockholders, officers, directors, employees, and agents

acting on behalf of the issuer.

• Domestic Concerns: Any individual who is a U.S. citizen, national, or resident of the

United States (not just U.S. citizens), or any business organization that has its principal

place of business in the United States or which is organized in the United States.

• The FCPA also applies to stockholders, officers, directors, employees, and agents

acting on behalf of the domestic concern.

• Other Persons: Anyone who takes any act in furtherance of a corrupt payment while

within the territory of the United States.

22


Definition of “Foreign Official”

• Any officer or employee (including low-level

employees and officials) of a foreign

government or any department, agency, or

instrumentality of the government, which

U.S. regulators have construed to include

employees of government-owned or

government-controlled businesses and

enterprises.

• Officers and employees of public

international organizations, such as the

United Nations, World Bank or other

international financial institutions, the Red

Cross, and others.

• Party officials and political candidates.

• Members of royal families.

The FCPA prohibits corrupt payments to “foreign officials,” which is expansively

defined to include:

Resource Guide on the

Definition of “Foreign Official”

In recently published guidance, DOJ

endorses a list of nonexclusive factors that

courts have considered when determining

whether an individual or entity should be

considered a state actor, including:

• Extent of ownership of the entity by a

foreign state;

• Foreign state’s degree of control over

the entity; and

• The general perception that the entity is

performing official or government

functions.

The guide also notes that the FCPA “covers

corrupt payments to low-ranking

employees and high-level officials alike.”

-A Resource Guide to the U.S. Foreign Corrupt

Practices Act (ch. 2)

23


What Constitutes a “Thing of Value”?

• Liability exists from the first dollar – there is no “de minimis” exception.

• It is not limited to tangible items of economic value.

• It can include anything a recipient would find interesting or useful, including:

• Gifts and/or “Comps”

• Theatre Tickets

• Entertainment

• Food and Wine

• Red Envelopes

• Internships

• Professional Training

• Trips

• Loans

• Employment

• Consulting Fees

• Meals

• Education

• Political or Charitable Contributions

“As part of an effective compliance

program, a company should have

clear and easily accessible guidelines

and processes in place for gift-giving

by the company’s directors, officers,

employees, and agents.”

-A Resource Guide to the U.S. Foreign Corrupt Practices Act (p.16)

24


FCPA Enforcement and China

25


Continued Focus on China by U.S. Enforcement Agencies

Enforcement Actions:

• InVision Technologies, 2004

• Diagnostic Products Corp., 2005

• Schnitzer Steel Industries, 2006

• Paradigm BV, 2007

• York International, 2007

• Alcatel-Lucent, 2007

• AGA Medical, 2008

• Faro Technologies, 2008

• Siemens AG, 2008

• ITT Corporation, 2009

• Avery Dennison, 2009

• Control Components, Inc., 2009

• UTStarcom, Inc., 2009

• Daimler AG, 2010

• Veraz Networks, Inc., 2010

• Alliance One International, 2010

• RAE Systems, Inc., 2010

• IBM Corp., 2011

• Maxwell Technologies, 2011

• Rockwell Automation, 2011

• Watts Water Technologies, Inc., 2011

• Biomet, Inc., 2012

• Pfizer/Wyeth, 2012

• Nordam Group, Inc., 2012

• Tyco, 2012

• Eli Lilly, 2012

26


2012: An Active Year for China-Related FCPA Investigations

Five of the year’s twelve FCPA enforcement actions against companies involved conduct

in China:

27


China FCPA Enforcement Trend: Health Care

Focus on the following risks when doing business in China’s health care sector:

Key Lesson: Appropriately allocate resources if your company is involved in a high-risk industry, such as health care. Know the risks and red flags associated with working with public hospital officials, and sponsored travel.

1. Distributors

2. Non-transparent tendering and

procurement processes

3. Medical training and conferences

28


China FCPA Enforcement Trend: Pre-Acquisition Due Diligence

Key Lesson: Effective and probing pre-acquisition due diligence is a must in order to avoid inheriting the FCPA liability of newly acquired businesses.

In the Pfizer/Wyeth case, due diligence is underscored as a must in order to avoid inheriting the FCPA liability of newly acquired businesses.

• Following Pfizer’s 2009 acquisition of Wyeth, its due diligence review found potential improper payments, prompting SEC and DOJ investigations.

• Wyeth paid $18.8 million to resolve the SEC charges.

• DOJ declined to pursue charges against Pfizer, citing its due diligence and the prompt implementation of internal controls in Wyeth’s entities.

29


China FCPA Enforcement Trend: Third-Party Risks

Recent investigations show that third parties remain the single greatest area of risk for companies doing business in China.

Key Lesson: Although use of third parties is often a useful, and sometimes necessary, part of doing business in an emerging market, it will often present corruption risks. Conduct due diligence on third parties in high-risk countries, actively monitor third-party behavior during the relationship, and insist upon absolute integrity when dealing with foreign government officials.

• Nordam

• Biomet

• Tyco

• Rockwell Automation

30


China FCPA Enforcement Trend: Third-Party Risks (cont’d)

Watch for red flags when dealing with third parties in China.

Common Third Parties to Watch in the PRC:

• Consultants

• Design Institutes

• PR/Marketing Firms

• Event Organizers

• Travel Agents

• Import/Export Companies

• Distributors & Dealers

• Unexplained increases in purchase prices

• Generic or unsatisfactorily explained invoices

• Inflated commission or fee arrangements

• Payments of money through indirect channels

• Hiring employees who are connected or related to

government officials

• Excessive travel and entertainment expenses.

• Third party domiciled in a country other than the one

where it provides services

31


China FCPA Enforcement Trend: Gift Giving

Key Lesson: Be aware of cultural conditions that may present risks. Closely monitor the provision of gifts, entertainment, and other business hospitality, especially around local holidays.

Recent enforcement actions involving China show continued focus on abuses of the region’s gift-giving culture.

• Eli Lilly

• Pfizer/Wyeth

• Biomet

• RAE Systems

• Schnitzer Steel

32


China FCPA Enforcement Trend: U.S.-Listed PRC Companies

“U.S. investors should be able to rely on the quality of audited financial statements. Our Working Group’s actions demonstrate how the SEC is proactively identifying emerging risks to protect U.S. investors from accounting fraud.”

-Kara Brockmeyer, Chief, Securities and Exchange

Commission FCPA Unit, 12/3/2012

Chinese

Private

Company

U.S.-listed

Public Shell

Company

U.S-listed Public

Chinese Company

Recent SEC action shows that the regulatory agencies are actively investigating Chinese headquartered U.S.-listed companies.

33


China FCPA Enforcement Trend: Scrutiny of Compliance Programs

Recent cases show that U.S. enforcement agencies will factor in a company’s compliance program when determining whether to commence an enforcement action.

• April 2012: Garth Peterson, former

managing director in Morgan Stanley’s real

estate investment and fund advisory

business, pleaded guilty to conspiring to

evade internal accounting controls that

Morgan Stanley was required to maintain

under the FCPA.

• The SEC and DOJ both declined to accuse

Morgan Stanley of any wrongdoing, and

cited the company’s robust FCPA

compliance program and internal controls.

34








Risk in China

35


Enforcement is Global

A single enforcement action may involve several countries, regions, or

regulators, including those in the U.S. and China.

• Biomet: China, Argentina, and Brazil

• Eli Lilly & Co: China, Brazil, Poland, and Russia

• Pfizer: China, Bulgaria, Croatia, Indonesia, Kazakhstan, Pakistan, Russia,

and Saudi Arabia

• Tyco: China and multiple other countries in Asia, Europe, Africa, and the

Middle East

Key Lesson:

When an issue arises, assess whether the problem extends beyond the borders of a single country or region.

36


Coordination Between U.S. and Chinese Authorities

• In 2011, China-U.S. Joint Liaison Group on Law

Enforcement Cooperation established the U.S.-China

Anticorruption Working Group

– Facilitated an anti-bribery roundtable with U.S.

and Chinese executives

– U.S. agreed to repatriate Chinese officials living

in the U.S. accused of receiving bribes in China

– In December, 2012 working group led U.S. &

China to agree to work together to implement

obligations under the U.N. Convention Against

Corruption

“[F]ighting against transnational bribery is . . . an area that holds good prospects for U.S.-China cooperation.”— Cameron F. Kerry, General Counsel, U.S. Dept. of Commerce (Aug. 1, 2011)

37








Risk in China

38


“After considering all the available facts

and circumstances, including that Morgan

Stanley constructed and maintained a

system of internal controls, which

provided reasonable assurances that its

employees were not bribing government

officials, the Department of Justice declined

to bring any enforcement action against

Morgan Stanley related to Peterson’s

conduct.”

- DOJ Press Release on the Morgan Stanley

Investigation

Establish an Effective Compliance Program

The Morgan Stanley case from 2012 reiterates the importance of maintaining

robust compliance programs.

39


“Fundamentally, the design of a company’s internal controls must take into account the

operational realities and risks attendant to the company’s business, such as . . . the degree to

which it has operations in countries with a high risk of corruption.”

-A Resource Guide to the U.S. Foreign Corrupt Practices Act (p. 40)

Establish an Effective Compliance Program Cont’d

The “basic elements DOJ and SEC consider when evaluating compliance

programs” are especially relevant to companies operating in emerging markets.

These include:

• Tailored Compliance Program

• Clear Compliance Policies

• Targeted Compliance Training

• Culture of Compliance

• Third-Party Due Diligence

• Confidential Reporting of Misconduct

• A Compliance Program That Evolves With The Business

40


Conduct Extensive Due Diligence on Potential Targets

Effective Due Diligence:

• Evaluate the target’s compliance program

• Evaluate particular risks associated with the target’s business

• How does the target deal with government officials?

• Evaluate the target’s use of and control over subsidiaries, field

offices, and agents.

• Conduct enhanced due diligence of any “red flags” that arise during

the diligence process.

41


Mitigate Risks Involving Third Parties

• Before: Conduct due diligence on potential agents, consultant,

distributors, and other intermediaries.

• After: Following the engagement of the third party, closely

monitor behavior to ensure continued compliance.

42


Gifts and Customer Travel • Gifts

– Tailor a compliance program to reasonably account for these cultural

expectations while preventing employees from using gifts as inducements to

win business.

• Travel

– Travel features especially prominently in corruption efforts in countries like

China, where public officials have limited opportunities for international

travel.

– When sponsoring travel for public officials, take precautions.

43


Other Tips for Mitigating Risks in China

Political and Charitable Contributions

• Contributions should not be used as a vehicle to conceal improper payments.

Establish pre-approval procedures for contributions.

Meals and Entertainment

• Meals and entertainment should only be given in connection with official

business and should, at all times, be reasonable under the circumstances.

Media Stipends

• Provide modest travel stipends uniformly, and never condition the stipend on

coverage. Journalists should provide written acknowledgement of receipt, and

all payments should be properly recorded in the company’s books and records.

44


Professional Profiles

Michael S. Diamant

Contact:

1050 Connecticut Avenue, N.W.

Washington, DC 20036-5306

Tel: +1 202.887.3604

[email protected]

Michael S. Diamant is a partner in the Washington, D.C. office of Gibson, Dunn & Crutcher. His practice focuses on white collar criminal defense,

internal investigations, and corporate compliance.

Mr. Diamant has broad white collar defense experience representing corporations and corporate executives facing criminal and regulatory charges. He

has represented clients in an array of matters, including False Claims Act violations, accounting fraud, and antitrust violations, before the Department

of Justice and the Securities and Exchange Commission. Mr. Diamant also has managed numerous internal investigations for publicly traded

corporations and conducted fieldwork—including more than 200 witness interviews—in eleven different countries on four continents. In the area of

corporate compliance, Mr. Diamant regularly advises major corporations on the structure and effectiveness of their compliance programs. This often

includes reviewing reporting mechanisms, internal payment controls, and compliance messaging, as well as drafting new compliance materials, such

as ethics and anti-corruption handbooks.

Among Mr. Diamant’s substantive areas of expertise is the U.S. Foreign Corrupt Practices Act (“FCPA”). Mr. Diamant conducts internal

investigations for corporations regarding possible violations of the FCPA and assists them in complying with government subpoenas and negotiating

settlements with enforcement agencies. He also routinely advises corporations on the adequacy of the design and implementation of their FCPA

compliance programs. Mr. Diamant has designed entire anti-bribery compliance programs, as well as guidance and payment approval materials, for

Fortune 100 corporations. He also frequently conducts FCPA training for in-house counsel, corporate executives, and line employees. In addition to

his work for clients, Mr. Diamant has held leadership roles in the FCPA compliance monitorships of Siemens AG and Statoil ASA.

Mr. Diamant clerked for the Honorable Fortunato P. Benavides of the U.S. Court of Appeals for the Fifth Circuit. He is a 2003 magna cum laude

graduate of the Georgetown University Law Center, where he was inducted into the Order of the Coif. At Georgetown, he served as Senior Articles &

Notes Editor of the American Criminal Law Review and authored the article on the False Claims Act for the Seventeenth Survey of White Collar

Crime, 39 Am. Crim. L. Rev. 491 (2002). In 2000, Mr. Diamant received his Bachelor of Science in Foreign Service magna cum laude from

Georgetown’s Walsh School of Foreign Service, where he was elected to Phi Beta Kappa.

45



Michael Li-Ming Wong Contact:

555 Mission Street, Suite 3000

San Francisco, CA 94105-0921

Tel: +1 415.393.8333

[email protected]

Michael Li-Ming Wong, a San Francisco-based partner, is the Co-Chair of the firm’s national Securities Enforcement Practice Group and is also a

member of the White Collar Defense and Investigations Practice Group. Mr. Wong focuses on white-collar criminal matters, complex civil litigation

and internal corporate investigations, with a particular expertise in anti-corruption investigations.

As first-chair trial counsel, Mr. Wong has tried more than twenty civil and criminal trials to verdict, including a recent trial victory that the San

Francisco Daily Journal and Los Angeles Daily Journal recognized as one of the Top Defense Verdicts of 2011 in California.

Prior to joining Gibson Dunn, Mr. Wong served for more than eight years as an Assistant United States Attorney for the Northern District of

California. From 2005 to 2008, he served as Chief of the White Collar Crimes Section, where he supervised a team of experienced Assistant United

States Attorneys and oversaw investigations, prosecutions and trials concerning corporate fraud, health care fraud, mortgage fraud, bank fraud,

environmental crimes, civil rights offenses, and public corruption. From 2004 to 2005, Mr. Wong served as Chief of the Major Crimes Section, where

he trained and supervised all new Assistant United States Attorneys and oversaw the largest and busiest unit in the U.S. Attorney’s Office.

As an Assistant United States Attorney, Mr. Wong served as lead counsel on some of the district’s most significant and high-profile matters, including

cases involving allegations of multi-million dollar fraud schemes, health care fraud, commodities fraud, stock-options backdating, mortgage fraud, and

public corruption. His cases have been covered in national publications such as the San Francisco Chronicle, the Los Angeles Times, The Wall Street

Journal, and The New York Times, as well as by local newspapers and Bay Area television stations.

In 2004, and again in 2008, Mr. Wong was flown to Washington, D.C., to receive the U.S. Department of Justice Director’s Award for Superior

Performance as an Assistant United States Attorney.

Mr. Wong served as a law clerk to Justice Ruth Bader Ginsburg of the U.S. Supreme Court, and to Judge José A. Cabranes of the U.S. Court of

Appeals for the Second Circuit. He graduated magna cum laude from Harvard Law School, where he was an Editor of the Harvard Law Review.

46



Robert Hunt Contact:

23/F, Gloucester Tower, 15 Queen’s Road

Central, Hong Kong

Tel: +852 2101 4128

[email protected]

Robert has substantial experience advising on contentious matters in Asia and Europe. Robert has a particular focus on investigations work and has

advised clients on cross-border internal and regulatory investigations involving issues arising under the Foreign Corrupt Practices Act, Bribery Act and

other international anti-corruption statutes.

Between 2005 and 2007, Robert spent time in the firm’s Singapore office and associated office in Jakarta, engaging in a wide range of regional

disputes including contentious regulatory matters, shareholder disputes, distribution agreement disputes and claims arising out of a large environmental

disaster.

In February 2011, Robert relocated to Herbert Smith Freehills in Hong Kong, where he plays an active role in the Dispute Resolution group.

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