International joint ventures bring very high risks under the U.S. Foreign Corrupt Practices Act. Unreliable partners — those who might pay bribes to foreign officials to help the business — need to be spotted early and either avoided or controlled. Like any courtship and marriage, the process of finding and keeping a suitable joint venture partner involves lots of work (and a dash of luck). The work part should be reflected through an effective compliance program aimed at managing the risks. Here, for example, are five (of many) joint venture-directed compliance elements:
1. Due Diligence. Take all necessary and prudent precautions through well-documented due diligence to ensure that business relationships are formed only with reputable and qualified joint venture partners.
2. Board or Management Reviews. Examine the suitability of all prospective joint venture partners for purposes of compliance with the Foreign Corrupt Practices Act. Review the adequacy of due diligence performed in connection with the selection of overseas partners, as well as the joint venture’s selection of agents, subcontractors and consultants for business development outside the United States. Reviewers should not be subordinate to the most senior officer of the Company’s department or unit responsible for the relevant transaction.
3. Compliance Obligations in the Joint Venture Documents. Include in all joint venture agreements representations and undertakings by the joint venture partners, with periodic re-certifications, that no payments of money or anything of value have been or will be offered, promised or paid, directly or indirectly, to any foreign officials, political parties, party officials, or candidates for public or political party office, to influence the acts of such officials, political parties, party officials, or candidates in their official capacity, to induce them to use their influence with a government or an instrumentality thereof to obtain or retain business or gain an improper advantage in connection with any business venture or contract in which the Company is a participant
4. Audits and Approvals. Retain audit rights over the joint venture. Agree with all partners that the joint venture will not hire an agent, subcontractor or consultant without the Company’s prior written consent (to be based on adequate due diligence).
5. Right to Terminate. Make sure all joint venture documents allow for immediate and unfettered termination for any breach of compliance-related obligations.
This list is not exhaustive.
See, for example, U.S. v. Monsanto Company, Deferred Prosecution Agreement, Appendix B, Remedial Compliance Program (January 6, 2005).
View the Monsanto Deferred Prosecution Agreement Here.