Glencore, the multinational natural resources company, has been ordered by US authorities to provide documents relating to its activities in a number of African countries, including Nigeria and the Democratic republic of Congo. Allegedly, the documents requested span over a decade, and will inevitably be a substantial volume.
This case is yet another indicator that anti-bribery and anti-corruption laws are becoming increasingly well-used by the authorities. It is not yet known whether the UK authorities (specifically, the Serious Fraud Office) intends to bring their own proceedings. It is worth noting however, that both the US Foreign Corrupt Practices Act, and the UK's Bribery Act require only a very small connection to the US or UK respectively to allow criminal proceedings to begin.
Actual criminal proceedings, however, are likely some time away. An investigation of this scale is likely to take months if not years. Nonetheless, managing an investigation is a critical step in responding to any threat of criminal proceedings, and must be done very carefully.
Firstly, as Glencore have stated, they are "reviewing the subpoena" (i.e. request for documents). In any investigation it is key to ensure that any demand for documents is validly made, sufficiently clear, and responded to properly. Documents provided should neither be too wide, nor too narrow. Likewise, any request for an interview should be considered very carefully, as it often represents a critical chance to influence the investigation (for better, or worse).
Secondly, at least in the UK jurisdiction, there is the risk of committing further criminal offences during the course of an investigation. Obstructing an officer, refusing to provide documents following a proper demand, or destroying or fabricating evidence are all examples of ancillary offences that could be committed without the right attention and advice.
Thirdly, there is the question of public relations and media management. The recent news wiped £4 billion off the market value of Glencore in less than a day. Any company's response to criminal investigations must be carefully managed.
Finally, as with all criminal investigations, prevention is better than cure. This case should serve as another reminder that anti-bribery and anti-corruption procedures are no longer optional, and will attract the attention of the authorities. It is now standard practice for most companies to have health, safety and environmental policies, procedures and training, and to discuss these topics at boardroom level. Anti-Bribery and corruption should now be a part of the "standard" corporate set-up; this is reinforced by the fact that the sole defence available to key Bribery Act offences is that "reasonable procedures were in place".
If you have any questions or concerns about anti-bribery and corruption law, would like assistance with putting reasonable procedures in place, or have been contacted by the authorities, then please contact Jack Baumgardt on J.Baumgardt@ashfords.co.uk or 0117 321 8021, or Jeremy Asher on J.Asher@ashfords.co.uk or 01392 333 824