Even clean Nordics have continuing enforcement risk

In the 2016 Transparency International Corruption Perceptions Index released last week, Nordic countries again received the most favorable rankings. Yet, for the second year in a row, Transparency International’s website draws a negative example from the Nordics, citing a scandal involving members of the Danish parliament to illustrate corruption in European countries. 

Last year, Transparency International used a Swedish bribery investigation to show that countries with reputations for domestic compliance may have “dodgy records overseas.” The website noted that “just because a country has a clean public sector at home, doesn’t mean it isn’t linked to corruption elsewhere.”   

As signatories to the OECD, the Nordics have been subject to a series of reports and recommendations, all of which called on authorities to step up the investigation and prosecution of bribery abroad. Follow-up reports praised the increased resources and expertise devoted to foreign bribery across the region. However, the reports also identified continuing weaknesses and the need for more progress, especially in Denmark and Finland.

At the same time, the U.S. DOJ has expanded its tactics to investigate foreign bribery and increased its coordination with law enforcement agencies abroad. For Nordic companies subject to the jurisdiction of the FCPA, this greatly increases the ways in which a corruption issue elsewhere in the world could come to the attention of authorities in the U.S. or their home country. 

A 2014 speech by Marshall Miller, then a high-ranking official in DOJ’s Criminal Division, described the use of “proactive investigative tools” and tactics previously used in organized crime and drug cases — tactics such as “wiretaps, body wires, physical surveillance, and border searches.”  This strategy has become a staple of U.S. white collar investigations and the aggressive use of those techniques is illustrated by the prosecution of PetroTiger’s former CEO, whose conversations were secretly recorded by the company’s general counsel, who wore a wire for the FBI. 

International cooperation has continued to expand since Miller’s 2014 speech, in SEC as well as DOJ investigations. A recent speech by Andrew Ceresney, then Director of SEC Enforcement, discussed the critical role of international collaboration in SEC FCPA investigations, and pointed to the growing trend of global settlements with payments divided among authorities in the U.S. and elsewhere. 

DOJ’s Pilot Program (pdf) stresses that leads, documents, and witnesses are increasingly shared across international borders. The OECD Working Group on Bribery, which includes all five Nordic countries, has also held quarterly meetings where U.S. authorities were invited to share information with other anti-bribery prosecutors.

In sum, Nordic companies can expect to see more aggressive enforcement of their own foreign bribery laws — and more cooperation with U.S. authorities (which could also lead to more Nordic companies being pursued for violations of the FCPA) and increased use of investigative techniques previously reserved mostly for drug and organized crime cases. 

____

Nancy C. Jacobson is a partner in Jenner & Block based in the firm’s Chicago and London offices. She has worked on global compliance reviews involving the Foreign Corrupt Practices Act, as well investigations of potential fraud, money laundering, and theft of intellectual property. She advises clients on corporate compliance programs and has drafted compliance materials for publicly held and private corporate clients.