USA Law and Practice Contributed by: Eric Bruce and Justin Simeone, Freshfields US LLP
9. Assessment 9.1 Assessment of the Applicable Enforced Legislation
ruption schemes. Typical prison terms for these crimes are often less than ten years but have ranged as high as 15 years for an FCPA violation and longer for domestic statutes.
Anti-bribery and corruption enforcement is rou - tinely subject to assessment by the US govern - ment itself, as well as civil society organisations and international institutions. OECD Evaluation In November 2020, the OECD released an updat - ed evaluation of US anti-bribery and corruption enforcement. The OECD generally commended the US efforts but also included a few potential future improvements. Among the strengths, the OECD stated that US enforcement authorities have increasingly addressed the “demand side” of bribery by charging foreign public officials and their associ - ates. It also positively noted the US commitment to co-ordinating multi-jurisdictional investiga - tions with agencies in other countries. While the report was largely positive, it nonethe - less recommended improvements in the detec - tion of foreign bribery, the continued harmonisa - tion of DOJ and SEC enforcement approaches, and increased tracking of debarments stemming from bribery-related enforcement actions by for - eign governments and multilateral financial insti - tutions. The European Court of Human Rights and GRECO In December 2023, the Council of Europe Direc - torate General Human Rights and Rule of Law Corruption – Group of States Against Corruption (GRECO) issued a report assessing anti-corrup - tion laws and practices. The report noted areas where the USA had made progress since previ - ous evaluations, but it identified additional points
8. Compliance Expectations 8.1 Compliance Obligations
The national legislation does not establish an affirmative duty to prevent corruption (although, as noted elsewhere, US “issuers” are required to maintain an adequate system of internal controls and accurate books and records). 8.2 Compliance Guidelines and Best Practices DOJ publishes guidance on the Evaluation of Corporate Compliance Programs (ECCP) for prosecutors to evaluate whether a corporation’s compliance programme was effective at the time of an offence and at the time of resolution, which can affect the appropriate form of resolution, monetary penalty, and corporate obligations. The ECCP therefore sets out expectations for an effective compliance programme, includ - ing whether the programme is well designed, applied in good faith, and works in practice. 8.3 Compliance Monitorships The DOJ and SEC may require an independ - ent compliance monitor as part of a corporate resolution. Monitors assess the effectiveness of a company’s compliance programme and deter - mine whether a corporation is ready for release after an established period of time. DOJ policy has shifted over time on whether to favour or disfavour monitorships. However, as of October 2021, DOJ guidance instructs that prosecutors should “favor the imposition of a monitor where there is a demonstrated need for, and clear ben - efit to be derived from, a monitorship.”
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