I recently had the opportunity to see live in one place together the CEO of a corporation who is on a deferred prosecution program under the U.S. Foreign Corrupt Practices Act (FCPA) and his supervisor (Monitor). Tomas Topolski is the CEO of Louis Berger International, engaged in construction. Monitor Eric Feldman, is executive director at Corporate Compliance and Ethics Programs. He has been in this business since 2011, before that he was employed by the CIA intelligence service.

Louis Berger Int. was in proceedings under the FCPA. They faced allegations that they bribed foreign civil servants in India, Indonesia, Vietnam and Kuwait in order to win public works contracts. Louis Berger Int. negotiated a deferred prosecution with the U.S. Department of Justice in July 2015, part of the deal was to pay $ 17 million, and the prosecution additionally set a condition for the company to establish a rigorous system of internal controls. Read to establish a strong and functioning program of corporate compliance and ethics. More about the settlement can be found at this LINK.

Today, two years later, Louis Berger Int. in the midst of establishing a compliance and ethics program, Eric Feldman was appointed by the Ministry of Justice to monitor compliance with the commitments under the agreement. This means that the monitor in the company monitors how seriously and successfully the company implements the commitments from the agreement with the prosecutor's office. The monitor reports everything to the Ministry of Justice. In monitoring the monitor, the most interested are:
• the commitment of senior management to ethics and compliance
• policies and procedures
• periodic risk assessment
• proper review and independence, compliance officers
• training and advising employees
• internal reports of irregularities and investigations
• taking action and disciplinary sanctions
• relations with suppliers
• procedures before and during acquisitions of other companies.

When it came to the above points, I asked Feldman how he assessed the first, i.e. the commitment of senior management, the so-called tone from the top. "Given that Topolski is now preparing to take the compliance expert exam," Feldman said, "I think I will be able to report that this commitment exists in senior management." Topolski was visibly upset, it was clear that he was not a native among compliance officers, they were probably closer to the company of businessmen. He took over the company after the bribery scandal had already taken place. He says they lost a lot. In addition to the millions for the settlement paid to the U.S. government, they had costs through other proceedings and everything else, which he said has already reached a total of nearly $ 200 million today. But that's not all. According to him, they lost the most because they fell behind the competition due to the corruption scandal. It hit them the hardest here and the road ahead will be longer and harder than it would otherwise be.

In Slovenia, we have a schizophrenic attitude towards the USA. On the one hand, we condemn them, and on the other, they fascinate us. The prosecution of bribery of foreign civil servants set up by the US is an example of good practice and should be emulated. Americans are known as practical people. Given the number of FCPA settlements between the state and businesses, they both clearly felt they benefited from this. It is certainly good for the functioning of the market if a company that has found itself in corruption proceedings voluntarily - under an agreement with the prosecution - develops a corporate compliance program and improves internal governance. This certainly positively changes the wider business environment. If there are many such companies and if these companies are important market players, the effect is so much stronger. This has long-term consequences.

There are many concerns in the continental legal tradition regarding such deferred prosecution arrangements, however. It is said to be a trade-off between the prosecution and the suspects, that it is a question of equality before the law and the like. Below the line, however, is probably the most important question of whether such an institute achieves what is in the public interest. A few problematic examples of such agreements certainly do not outweigh many positive ones, among them, for example, Siemens.

Slowly, the mood is also changing on the old continent. The new French anti-corruption law (Loi Sapin II), in France, despite many objections, already introduces the institute of a deferred prosecution agreement modeled on the FCPA. How this will work in the continental legal environment is still a big question, but I dare to bet that, with an otherwise longer time lag, this will also come to Slovenia. It is never too early to establish a good compliance and ethics program in a company.

Rok Praprotnik