C5 Conferences, Events, Publications

Hold Your Own Toy Drive!

December 11th, 2011
in Uncategorized |

The Holiday Season is right around the corner and for the majority of us the holidays are a wonderful time of year. Unfortunately for many children, this is a time of need.

Many of us would like to help–by raising money, or co-coordinating a toy drive in our offices or groups – but too often limited time, other commitments and a lack of resources can mean that our good intentions come to nothing.

www.OurToyDrive.Org is designed to make it easy for individuals, organizations, businesses and communities to easily, quickly and securely set up their own toy drive with all the resources necessary to ensure that their initiative is a success.

Setting up a toy drive is easy and free:

1. Send us an email with your corporate contact information to receive more detailed information

2. Receive a branded web page and choose the toys that you wish to offer as part of the drive (see example)

3. Spread the word to your colleagues, friends and family via email and social media (templates and ideas will be provided for your use).

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Franchising and the FCPA

January 24th, 2011
in Uncategorized |

The American Conference Institute and C5 would like to thank Thomas Fox for his expert guest article contribution. Thomas will be attending ACI’s FCPA Houston and will be blogging and tweeting about  his experience at the event. Don’t forget to follow Thomas and the C5 on Twitter via @Tfoxlaw and @anticorruption1, respectively.

Franchising and the FCPA

The Foreign Corrupt Practices Act (FCPA) applies to all US companies and individuals which conduct business overseas. FPCA practitioners recognize there are two components: (1) the anti-bribery component, handled by the Department of Justice (DOJ) and (2) the books and records components, handled by the Securities and Exchange Commission (SEC). None of this is new information and indeed, has been present it the FCPA since it was enacted in 1977. This breadth and scope of the FCPA make it mandatory that any business or person which conducts business overseas does so in compliance with the FCPA. One of the lessons learned from 2010 is that a business not traditionally thought of as high risk for FCPA compliance can still run afoul of the FCPA. In October, CB Richard Ellis, a global real estate firm, disclosed possible FCPA violations in China. As reported by the FCPA Blog, the Company reported in a SEC filing that its employees made payments for entertainment and gifts to Chinese government officials, which were discovered during an internal investigation. This blog will look at the franchising industry and explore its possible FCPA exposure.

The franchising model has been in vogue for many years. It has been a successful model in the US and now many corporations are looking at overseas expansion opportunities. Franchise law has become well developed across the US, with many states developing laws to protect the rights and obligations of both parties in a franchise agreement. According to an International Franchise Association survey nearly 1,600 franchise systems in 2008, “nearly two-thirds (61 percent) of respondents currently franchise or operate in non-U.S. markets and three-fourths (74 percent) plan to begin international expansion efforts or accelerate their current ventures immediately.”

There are no reported FCPA enforcement actions regarding franchisors. However, the factors in a franchise relationship would appear to lead to clear FCPA responsibility of the franchisor for its overseas franchisee’s actions. Additionally, court interpretation of the FCPA has held that it is applicable where conduct, violative of the Act, is used to “to obtain or retain business or secure an improper business advantage” which can cover almost any kind of advantage, including indirect monetary advantage even as nebulous as reputational advantage. As almost everyone knows, the FCPA prohibits payments to foreign officials to obtain or retain business or secure an improper business advantage. Nevertheless many US companies view franchisors as different from other types of more direct sales representatives, such as company sales representatives, agents, resellers or even joint venture partners, for the purposes of FCPA liability. However, the DOJ takes the position that a US company’s FCPA responsibilities extend to the conduct of a wide range of third parties, including the aforementioned company sales representatives, agents, resellers, joint venture partners and distributors. It does not take too great a leap of imagination to see that a franchise relationship could be contained within this interpretation. It does not take too many legal steps to see that a franchisee’s actions can impute FCPA liability to a US franchisor.

There are other factors, unique to the franchise relationship, which would point towards FCPA liability of the US franchisor. A US franchisor’s intent and the degree of control it exercises over its overseas franchisees’ operations are factors the DOJ/SEC might consider in determining whether to pursue an FCPA case against a franchisor for bribes made by one of its foreign franchisees. It is always in the financial interest of a US franchisor for its franchisees to be successful businesses. Additionally, most US franchisors require its overseas franchisee’s to use the same company name for branding.

How would all of this play out for a franchisor? As a franchisor moves into foreign markets there could well be the temptation to “grease the skids” and make payments or offer gifts to government officials, or their family members, to get the permits or permissions necessary to open and operate. In many countries, bribery is a common way of getting business done, and there can be tremendous pressure from local agents or franchisee candidates to follow regional customs and use bribes to become or remain competitive. Even if it is not the US franchisor’s own employees which engage in the FCPA violations, the US franchisor will still face the risk of an enforcement action if the franchisee’s employees engage in such conduct.

Most franchisors have thorough financial vetting requirements before allowing any person or business to become a franchisee. However, how many of these same business  perform FCPA compliance due diligence on their prospective overseas franchises? How many US franchisors have FCPA compliance training programs? How many evaluate, on an ongoing basis, the FCPA compliance and program of their overseas franchisees? How many US franchisors have a compliance hotline or other reporting mechanism for any compliance violations made against their franchisees?

If you are a US franchisor, looking to expand overseas, one of the first things you should do is to perform a FCPA risk assessment and then use that risk assessment to implement a full FCPA compliance program within your company going forward. If you are a US franchisor which has international franchises but which has not previously reviewed your FCPA requirements, you should do so as soon as possible. If not, your FCPA exposure may be unlimited….

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2011

Legal Conferences

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Six Principles for Bribery Prevention Part 2

September 28th, 2010
in Uncategorized |

By Thomas R. Fox

Last week the United Kingdom’s Ministry of Justice released its “Consultation on guidance about commercial organisations preventing bribery (section 9 of the Bribery Act 2010)”. The stated purpose of this document is to provide guidance, as required under section 9 of the Act, to “support businesses in determining the sorts of bribery prevention measures they can put in place.” Businesses covered by the UK Bribery Act can be convicted of a criminal offence if they fail to prevent bribery on their behalf. However, the Act provides that if the organization can show that it has adequate bribery prevention procedures in place, such “adequate procedures” are a defense to a prosecution.

The Consultation lists “Six Principles for Bribery Prevention” which the Ministry of Justice believes are good international practices for such adequate procedures and is designed to assist businesses in determining what bribery prevention procedures they can put in place. In our previous posting we reviewed Principles 1 and 2, in this posting we will provide a review of Principles 3 and 4 and the final  posting will focus on Principles 5  and 6.

Initially it should be noted that the Six Principles are designed to be result oriented and to allow a flexible approach to ethics and compliance. US practitioners will observe this is in contrast to the US approach, which is much more rules based. The UK approach is to allow each company to tailor its policies and procedures so that they are proportionate to the nature, scale and complexity of its activities. Clearly there is a huge variety of circumstances; small and medium sized organizations will, for example, face different challenges compared to large multi-national enterprises. As a result, the detail of how each company addresses these principles will vary, but the outcome should always be robust with effective anti-bribery systems and controls.

PRINCIPLE 3 – Due diligence

The commercial organisation has due diligence polices and procedures which cover all parties to a business relationship, including the organisation’s supply chain, agents and intermediaries, all forms of joint venture and similar relationships and all markets in which the commercial organisation does business.

Companies will need to know who they are doing business with if their risk assessment and mitigation are to be effective. The particular types of due diligence listed below are examples of enquiries that can help identify bribery risks associated with a particular business relationship and will enable the organization to take appropriate preventive measures.

Location – Enquiries about the risk of bribery in a particular country in which an organization is seeking a business relationship, the types of bribery most commonly encountered and any information about the preventive actions which are most effective. Organizations may wish, for example, to be advised of relevant civil, administrative and criminal law and the existence of any procedures for reporting bribery to the relevant local authorities.

Business opportunity – Enquiries about the risks that a particular business opportunity raises, for example establishing whether the project is to be undertaken at market prices, or has a defined legitimate objective and specification.

Business partners – Enquiries to establish whether individuals or other organizations involved in key decisions, such as intermediaries, consortium or joint venture partners, contractors or suppliers, have a reputation for bribery and whether anyone associated with them is being investigated, prosecuted, or has been convicted or debarred for bribery or related offenses. Organizations may also wish consider the risks associated with politically exposed persons where the proposed business relationship involves, or is linked to, a prominent public office holder.

Organizations may wish to ensure that enquiries are made of partners’ internal anti-corruption measures.

PRINCIPLE 4: Clear, Practical and Accessible Policies and Procedures

The commercial organisation’s policies and procedures to prevent bribery being committed on its behalf are clear, practical, accessible and enforceable. Policies and procedures take account of the roles of the whole work force from the owners or board of directors to all employees, and all people and entities over which the commercial organisation has control.

After a company performs a thorough risk assessment and follows up with any required due diligence, it should be in a better position to develop effective bribery prevention policies and procedures. To the extent feasible, businesses should draw from the expertise of its work force to develop appropriate policy and procedure documentation,   as such actions can serve to secure buy-in from those who will be responsible for applying them.

Policy and Procedure Documentation

Companies should evaluate just how comprehensive, clear, practical and accessible its anti-bribery and anti-corruption policy and procedures documentation is to all employees and to other appropriate,  relevant persons and entities over which it has control. Such anti-bribery and anti-corruption policy and procedures documentation could include:

1.          A clear prohibition of all forms of bribery including a strategy for building this prohibition into the decision making processes of the business.

2.          Specific guidance on making, directly or indirectly, political and charitable contributions, gifts, and appropriate levels and manner of provision of bona fide hospitality or promotional expenses to ensure that the purposes of such expenditure are ethically sound and transparent.

3.          Provide to the business advice on relevant laws and regulations.

4.          Detail guidance on what action should be taken when faced with blackmail or extortion, including a clear escalation process.

5.          A specific statement of the company’s level of commitment to the UK law on employment law protection for whistle-blowers and an explanation of the process for such internal reporting of bribery or corruption.

6.          Businesses should endeavor to provide information on anti-bribery and on anti-corruption programs relevant to the industry in which they sit.

7.          Companies should issue a Code of Conduct, which sets out expected standards of behavior and which can form part of the employment contract.

Support and Operational procedures with the Organization

Businesses should also consider how their existing internal company procedures can be used for bribery and corruption prevention. For example, financial and auditing controls, disciplinary procedures, performance appraisals, and selection criteria can act as an effective bribery deterrent. Other prevention procedures may include modification of sales incentives to give credit for orders refused where bribery is suspected; and “speak up” programs  to allow any employee to report allegations of bribery or breaches of corporate anti-bribery policies in a safe and confidential manner.

Managers may wish to consider the resistance to bribery of particularly vulnerable operational areas such as procurement and supply chain management mechanisms and address any issues they have identified.

Management of incidents of bribery

Businesses should also consider putting in place procedures to deal with incidents of bribery, should one arise, in a prompt, consistent and appropriate manner. This could include designating a senior manager to oversee the company’s response. The business will need to decide whether to refer the matter to law enforcement agencies. There may need to be oversight of the sanctions process and a communications strategy to reassure investors, employees, customers, business partners and others possibly exposed to consequences from the incident.

The Guidance on Principles 3 and 4 are designed to give businesses the information they need in order to implement  what they have learned through their risk assessments. The specific guidance set forth in the Consultation can be used by any compliance and ethics professional to properly assess and manage third parties and the nuts and bolts of how to create policies and procedures for an entire organization.

Check out Thomas R. Fox Biography for more information on our expert guest blogger.
Got Twitter? Follow Thomas @tfoxlaw and ACI @anticorruption1

Legal Conferences

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C5′s Forum on Investment Treaty Arbitration

September 22nd, 2010
in Uncategorized |

With the leading lawyers, arbitrators and counsel signed up to attend, C5′s Investment Treaty Arbitration conference is set to be the “place to be” for practice leaders next week.

Looking to stay on top of the changing legal landscape and develop strategies for conducting effective Investment Treaty Arbitration? Researched with the market, this unique event identifies the burning issues facing the practice area and how these are being addressed by those on the front line.

In London on 22nd and 23rd September, you have a unique opportunity to benchmark with leading arbitrators and industry leaders to hear strategies and solutions on:

• How to ensure you obtain adequate investment treaty protection at the formation of the contract
• What constitutes a “bona-fide” investment when treaty shopping?
• Examining the relationship between investment treaty arbitration claims and political risk
• Demystifying how arbitration tribunals have reached their decisions
• How are non-precluded measures clauses being interpreted?
• The latest on quantification of damages
• How investment treaties interact with social legislation
• Examining different rules on the enforcement of investment treaty arbitration awards
• The entry barriers for third-party intervention in investment treaty arbitration
• The increase in conflicts of interest and challenges to the arbitrator
• How do bribes paid in the obtaining of the investment affect potential remedies?

Legal Conferences



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5 Gute Grϋnde Am Europäischen Manager…

August 7th, 2010
in Uncategorized |

http://www.c5-online.com/Directors.htm

1. Beispiellose Networking Möglichkeiten

Unsere Manager Eventserien aus London und Köln ziehen regelmäßig über 100 Teilnehmer an, wodurch sie zu erstklassigen Networking Events für die Europäische Manager-Haftplichtversicherungsindustrie werden. Die Kölner Ausgabe ist die Stelle, Broker,Versicherer und Rechtsanwälte der größten Europäischen Firmen anzutreffen. ACE, AIG, Allianz, Aon, AXA, BP, CNA, SCOR, Chubb, EDF, Gen Re HCC, JLT, Liberty Mutual, Marsh, Guy Carpenter & company, AEGIS, Nexans, Paragon, Partner Re, Nassau, Munich Re, Royal & Sun Alliance, Shell, SVB, Swiss Re, Willis und XL sind nur einige der Unternehmen, die an unseren Managerserien Jahr für Jahr teilnehmen.

2. Unübertroffenes Referentenkollegium

Nach Monaten der Recherche mit Ihnen, der Industrie, haben wir ein weltklasses Kollegium an Referenten zusammengestellt, darunter:

Thomas Harmeyer, Regionalmanager Deutschland, Österreich und Schweiz, HCC Global Financial Products

Ed Mrakovcic, Referral Underwriter, Gen Re

Dr. Alexander Mahnke, Managing Director Financial Services Group, Aon Jauch & Hübener

Keith Thomas, CUO Financial Lines, Zurich Global Corporate

Pat Gilham , Chairman – International Division – FI D&O, Howden Global

Horst Ihlas, Partner, Ihlas & Köberich Brokers

Mark Bailey, Head of European Group, Financial Lines Claims, ACE Insurance

Um das komplette Kollegium an Referenten zu sehen plus ihre Biographien, besuchen Sie: http://www.c5directorsliability.com/speakers.html

 3. Exzellentes Lernpotenzial

Dies ist das einzige Forum, bei dem Sie von Experten über die neuesten Versicherungstechniken, Trends im Umgang mit Ansprüchen und rechtliche Entwicklungen hören, die den Europäischen Managermarkt heutzutage betreffen.

Die neue und aktualisierte Session beinhaltet:

Neu: Was kann der Manager-Versicherungsmarkt von dem Isländischen Bankenkollaps lernen?

Neu: Die neuesten rechtlichen Updates, Fallstudien, Regulierungs- und Erfüllungsbelange in der Schweiz, in Spanien sowie in Benelux

Aktualisiert: Industrielle Runde:’Analyse wie das derzeitige Klima Europäische Manager-Versicherer beeinflusst’

Aktualisiert: Was sind die aktuellen Anliegen der Manager-Policekäufer und wie können diese angepasst werden?

Aktualisiert: Untersuchung über den Einfluss von Insolvenz auf die Haftbarkeit von Managern

4. Extra Vorteile für Risikomanager

Neu in diesem Jahr ist unser pre-conference Workshop, ‘Die Essentiellen Überlegungen der Manager-Versicherung für Risikomanager und Käufer’ wird am Montag, 19. Oktober von 14:00-17:30 Uhr stattfinden. Risikomanager sparen 50% der Hauptkonferenzpreise, wenn Sie einen Platz für den Workshop buchen. Für weitere Informationen rufen Sie uns bitte an unter +44(0)20 7878 6888 um über Ihre Buchung zu sprechen.

5. Sie!

Bei so vielen führenden Akteuren in der Managerversicherungsindustrie, die bereits vorgesehen sind teilzunehmen, sind Sie der eine wesentliche Bestandteil, den wir brauchen, um das Bild zu verstollständigen! Planen Sie noch heute Ihre Teilnahme, um sicher zu gehen, dass Sie ein Teil des Managerversicherungs-Events 2009 sind.

Bitte sehen Sie unsere neue interaktive Website durch für vollständige Informationen über das Tagesprogramm, Referentenkollegium, Partnerschaften und vieles, vieles mehr!

http://www.c5-online.com/Directors.htm

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