By Paul Hastings Professional
在问答环节中，普衡合伙人唐海燕，Toshi Arai, Hiro Hagiwara**以及Jong Han Kim**讨论了越来越多的亚洲公司开始制定符合全球标准的合规政策的趋势，并且分析了合规政策受到如此重视的原因。
Cultivating a Culture of Compliance in Asian Firms
In our Q&A, partners Haiyan Tang, Toshi Arai, Hiro Hagiwara and Jong Han Kim discuss the growing number of companies across Asia developing global standard compliance programs—and why these programs are so critical.
Why are global standard compliance programs necessary?
These types of programs are necessary because we want to cultivate a culture of compliance in Asian firms. While compliance programs have been around for a while in Europe and the U.S., they are still a relatively new and highly contentious topic throughout Asia. Many Asian companies have traditionally expanded their business operations by maintaining close ties to government officials and agencies and by lobbying and entertaining their customers, creditors, and regulators. Many of these activities would be conducted in discrete settings through non-transparent means. Due to the increased enforcement of such behavior by U.S. and European regulators and the increasing scrutiny by some Asian regulators, the risk of criminal (and accompanying administrative and civil) exposure to Asian companies has grown.
A compliance program is created to prevent wrongdoing. It lays out a list of what you can and cannot do and is essentially a thick book of guidelines – or a “prevention tool” to reduce risk for a company. A true global standard program takes one to two years to implement as it would completely change the way the operations of the company are managed and the divisions are structured. A properly established program would have to withstand a rigorous scrutiny and test by, for instance, the U.S. Department of Justice in case the company becomes involved in a U.S. criminal investigation.
What are the critical components for successfully implementing a compliance program?
Setting up a true compliance program means going straight to the top of an organization and asking the company’s leadership to spend a large amount of money on something that hasn’t even happened (and may not ever happen). Implementing a compliance program involves heavy employee education, changing systems of operation, and changing how people conduct their business. Reluctance and a lack of acceptance from different departments are to be expected.
We at Paul Hastings have worked directly with the CEOs and chairmen of leading companies to convey the value and importance of changing the corporate culture to bring transparency to corporate operations and conduct. Though reluctant at first to upset the present system, these leaders have come to appreciate the value that such changes would bring, especially the decrease in criminal exposure for their companies and their employees.
What positive impact have these compliance programs had on our clients?
Building tailor-made programs that fit a particular firm’s culture while meeting global standards has added significant value and could potentially help clients save millions of dollars by not only avoiding lawsuits and government investigations, but also becoming eligible for potential benefits, such as government-imposed fine reductions.
The cost-savings potential for companies has proven to be enormous by helping avoid the risks and detecting wrong-doings long before their implications kick in. We are optimistic that a wave of other Asian firms will follow, and accordingly that we will have had a hand in cultivating a corporate culture of compliance across the region.
Turning to China, where the government’s anti-corruption efforts continue to be in the spotlight, are there significant recent changes in laws or regulations that our client should be aware of?
Chinese President Xi Jinping has led an aggressive, zero-tolerance anti-corruption campaign. According to news reports, the campaign has successfully punished more than one million officials, seized more than US$1 billion in assets, and extradited thousands of fugitives. Against this backdrop, the following legislative changes in Chinese rules and regulations can be observed in response to or in support of the campaign:
Judicial Interpretation on the Application of Law in Anti-Corruption and Anti-Bribery Criminal Cases
New monetary thresholds for criminal sentencing standards:
Increased for both briber and bribee to match current economy status;
Same thresholds for both briber and bribee to show the administration’s determination to punish wrongdoers on both sides.
Definition of “things of value” clarified to include certain intangible benefits.
Definition of “seeking illegal benefits for others” expanded to include 1) when bribee is aware that there is a specific request; and 2) when the bribee has no knowledge of a specific request during performance, but receives payments afterwards by virtue of the performance.
Anti-Unfair Competition Law
The draft amendment was issued by the People’s Congress to seek comments on February 26, 2017
Third parties come under scrutiny.
Business operators assume vicarious liability for acts of employees.
Both accepting and offering a bribe are punishable;
Criminal and administrative penalties can come in parallel;
Value of fine is increased;
Revocation of business license is possible;
However, forfeiture of illegal gains has been removed, potentially because it is difficult to determine “illegal gains.” Commentators are calling for the reconsideration of this removal because this might lower the deterrence against misconduct.
Cyber-Security Law (CSL)
The CSL went into effect on June 1, 2017, and is to be followed by the Security Assessment Measures regarding the Exit of Border of Personal Information and Important Data (“Draft Measures,” not yet effective, issued on April 11, 2017 for public comment)
Under the CSL:
Cross-border transfer of personal information is regulated;
Consent by owner of the personal information may be required for out-of-China data transmission (Article 4 of the Draft Measures);
Consent may be inferred under certain circumstances, such as making international phone calls, sending emails or instant messages to individuals or organizations overseas, and making cross-border e-commerce transactions;
Other activities initiated by data subjects based on the Amendments.