Avoiding risk of corporate bribery

Bearing in mind that China, like many non-common law jurisdictions, has no similar concept to the legal privilege protections available in the UK or US and the wide powers the Chinese authorities have to search and seize evidence, the risk is not just that the US or UK authorities will discover wrongdoing overseas, but that the information that may be shared by the Chinese authorities with their foreign counterparts will include material that they would not normally be able to access.

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Against this backdrop of increasingly onerous laws, harsh penalties, significant risk of discovery and damage to reputation, it would be an unwise corporation which chose not to seek to minimize its bribery risks, both to avoid the risks materializing and to maximize the protection available by implementing robust and proportionate anti-bribery policies and procedures.

While there is no magic formula for creating such protection, corporations may wish to take on board the "six principles" recommended by the UK Ministry of Justice and the "10 hallmarks" of effective compliance recommended by the US Department of Justice and the Securities and Exchange Commission.

Together, they recommend implementing proportionate procedures following analysis of the bribery risks faced by the business, both internally and externally, supported by a senior management who lead by example and deliver the right "tone from the top".

The policies and procedures need to be the responsibility of someone senior within the business, with appropriate resources to deliver, implement, enforce and monitor the effectiveness of those procedures. Employees must be informed about these procedures and appropriate training provided.

There is no "one size fits all" approach to implementing such procedures and each business will have different concerns and activities that may expose it to an increased level of risk.

However, understanding local issues, risks and cultural variations, as well as local best practices will be a key component in developing an effective program. This implies the need for local acceptance and involvement in the compliance process. Local support and trust are a must if the procedures are to be effective.

Omar Qureshi is a partner and head of anti-corruption at CMS, a law firm based in London. Amy Smart is an associate in the commercial dispute resolution team at CMS. The views do not necessarily reflect those of China Daily.