Worldwide: New International Standard A Key Feature In ENSafrica's Latest Anti-Bribery And Corruption Survey

Last Updated: 13 April 2018
Article by Steven Powell, Roy Gillespie and Suad Jacobs

Most Read Contributor in South Africa, October 2018

A key feature of ENSafrica's fourth annual anti-bribery and corruption ("ABC") survey was understanding whether organisations were familiar with the new ISO 37001 anti-bribery management standard ("ABMS"). The International Organization for Standardisation released the ABMS in October 2016. This new standard is designed to support organisations in their fight against bribery and promote an ethical business culture by establishing, implementing and maintaining an anti-bribery compliance programme.

The survey indicated that:

  • 91% of respondents believed that adopting the new global ABMS would improve their compliance programmes
  • 82% of respondents confirmed that they would be more likely to conduct business with companies that are ISO 37001 compliant
  • 47% of respondents indicated that it was important, or critically important, for their organisation to become ABMS compliant
  • 44% of respondents indicated that the greatest challenge to implementing the ABMS was securing adequate resources and budget to do so
  • 43% of respondents were not at all familiar with the new ABMS, while 45% had limited understanding of it
  • 36% of respondents confirmed that they would be seeking ISO certification for their ABMS
  • 31% of respondents indicated that they intended complying with the ABMS, while 65% said they were unsure whether they would be complying. Only 4% of respondents indicated that they would not be complying with the new ABMS
  • 31% had already started implementing the ABMS, or would be doing so in future
  • 5% of respondents indicated that their ABMS had already been ISO certified

The new anti-bribery management system

Like the United Kingdom ("UK") Bribery Act ("UKBA") guidance, the United States ("US") Foreign Corrupt Practices Act guidance and the World Bank Global Integrity Compliance Program Guidelines, the ABMS addresses tone at the top, due diligence, training, gifts and hospitality, books and records, and risk assessments. It speaks in terms of compliance programmes that are "reasonable", "appropriate" and "proportionate". Although the standard closely resembles existing ABC compliance guidance in some respects, for the first time it sets out an internationally agreed-upon set of procedures.

This new standard is invaluable as it allows organisations to understand the measures that need to be implemented in order to develop an effective anti-bribery management programme. This standard can be used by any organisation, large or small, whether in the public, private or voluntary sector, and in any country. It is a flexible tool that can be adapted according to the size and nature of the organisation and the bribery risk it faces.

The standard sets out a series of measures that an organisation must implement, which represent globally recognised anti-bribery good practice. Similar to the UKBA, the ABMS talks to both active (paying) and passive (receiving) bribery, and specifies measures that an organisation must adopt to address bribery:

  • by the organisation, or its personnel or business associates acting on the organisation's behalf or for its benefit, and
  • of the organisation, or its personnel or business associates in relation to the organisation's activities.

Other survey results

Many organisations indicated that they were not yet familiar with the new standard (43%), with 34% of respondents confirming only a limited level of familiarity. 68% of respondents had not implemented any process in respect of ISO 37001, with 32% confirming they had already started.

  • 31% of organisations intended complying with ISO 37001, with 65% currently unsure
  • 5% indicated that they have already been ISO 37001 certified
  • 47% indicated that it was important for their organisation to become ABMS compliant, with 36% of respondents confirming that they would be seeking ISO certification for their ABMS

Respondents listed the following areas as the most crucial in terms of their ABMS (in order of importance):

  • tone at the top
  • risk assessment
  • due diligence of business partners
  • vetting new employees
  • anti-bribery training for employees
  • control of benefits such as gifts, travel and entertainment
  • maintaining accurate books and records
  • proportionate procedures
  • appropriate policies and procedures
  • adequate resources and budget for a compliance team
  • implementing measures designed to prevent, detect and respond to bribery
  • maintaining a whistle-blowing or reporting facility dealing appropriately with any actual or suspected bribery, or violation of anti-bribery policies

A significant concern is that 44% of respondents highlighted "adequate resources and budget for compliance team" as the most challenging measure that may impede the ability to implement the ABMS. ISO guidance recommends that organisations should appoint a compliance manager to oversee the design and implementation of the ABMS programme. The role includes advising and guiding personnel on the ABMS system and on issues relating to bribery, and ensuring compliance with the ISO standard. Management of the organisation must ensure that this role is adequately resourced and assigned to appropriate persons with the necessary skills, competence, status, independence and authority. Additionally, there should be sufficient budget, including in the anti-bribery compliance function, for the ABMS to function effectively.

The anti-bribery compliance function must have direct and prompt access to top management in the event that any issue or concern needs to be raised in relation to bribery or the ABMS.

A regulator will consider how much a company spends on compliance annually (in the context of its size) and the resources dedicated to the compliance function. If a relatively large company spends very little on compliance and has little to no compliance resources, it will be difficult to convincingly argue that it is committed to ABC compliance.

Other measures that respondents cited as challenges to implementing processes in respect of ISO 37001 include:

  • due diligence of business partners (42%)
  • control of benefits such as gifts, travel and entertainment (27%)

31% of respondents indicated that they had already, or would be, implementing the ABMS in the near future, with respondents stating that assurance to management, investors, business associates, personnel and other stakeholders that their organisation was taking reasonable steps to prevent bribery was the most important benefit of ISO 37001.

The Prevention and Combating of Corrupt Activities Amendment Bill

The South African Department of Justice and Correctional Services recently published the Prevention and Combating of Corrupt Activities Amendment Bill, which proposes amending the Prevention and Combating of Corrupt Activities Act, 2004 ("PRECCA").

The Bill places an obligation on persons in a position of authority (as defined in PRECCA) to implement an internal compliance programme to ensure offences are detected and reported. However, the Bill is silent on guidance on what this programme should look like or how it should be implemented. ABMS provides a blue-print solution for such an internal compliance programme.

Certification

During this survey, we received a number of enquiries regarding ABMS certification. This would usually entail an external consultant supporting the organisation in implementing the necessary ISO management system. Once this is done, the organisation would apply for certification with an accredited body for assessment.

Certification is no guarantee that bribery will not occur and will not provide immunity against prosecution. However, it may assist the organisation to demonstrate its commitment to anti-bribery compliance and confirm "adequate procedures" to prevent corruption.

Respondents

120 respondents participated in ENSafrica's fourth ABC survey. The majority of respondents indicated that they had operations in South Africa (80%), with significant others having operations in Namibia (29%), Mozambique (15%), Kenya (15%), Botswana (13%), Mauritius (13%), Zambia (12%), Tanzania (11%), Uganda (10%), Ghana (9%), Lesotho (9%), Nigeria (9%) and Zimbabwe (8%). A number of the respondents also indicated that they had operations in non-African jurisdictions, including the UK, the US, Australia, China, Brazil, Ireland, Malaysia and Bermuda.

Respondents were primarily compliance professionals (18%) and legal professionals (25%), with others in forensics, human resources internal audit and executive management roles. 33% of respondents indicated that their organisations had between 1 000 and 9 999 employees.

Disclaimer

The information contained in this article is of a general nature and is not intended to be construed as specific legal advice to any individual or entity. Neither ENS Forensics (Pty) Limited, nor Edward Nathan Sonnenbergs Incorporated (trading as ENSafrica), will accept any liability whatsoever that arises out of any reliance on the information contained herein. Should any person require specific legal advice applicable to their specific circumstances, such advice should be obtained from an appropriately qualified legal practitioner.

In this article, certain comparisons are drawn between the results of previous surveys and the 2017 survey. Such comparisons must be read in the context that the respondents of the surveys differ year-on-year, and therefore the comparisons may not necessarily represent accurate developments over time.

In this article, there are various references to the percentage of respondents who provided specific answers to questions. These references must be read in the context that not all respondents answered each and every question in the survey. Nevertheless, the percentages represent the number of persons who answered in a specific manner in each instance and, generally, a significant number of the total respondents answered relevant questions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions