Competing Laws? Making Decisions in a Multi-National World (Part 2)
/Many compliance officers are terrified of waking up and finding that they did not fulfill an obligation under a law they never heard of. How can any person be expected to know about all laws? The answer is that they can’t. No person in the world would be expected to know the ins and outs of all bribery laws, much less all the laws managed by the typical compliance team.
This is the second of two blog posts exploring how to manage competing laws and making decisions in a multi-national world. In Part 1, we explored the challenges of competing laws and revealed the best way of structuring your program to respond to them. In this blog, we’ll discuss ways to get help to ensure you know about the laws affecting your program, as well as how to document your decision-making to meet regulatory expectations.
Where to Get Help
There are several ways to get help so you can sleep at night. These include:
Enlist the Help of Local Compliance Champions
Choosing a local compliance champion has myriad benefits. The person can be your eyes and ears on the ground, give training in the local language, and assist in ensuring that the compliance program is rolled out effectively in their region. In addition to these tasks, assign the local compliance champion the job of keeping an eye on new laws that might affect the compliance program. This can be easily done by introducing the compliance champion to a local lawyer who will help to keep the compliance champion abreast of laws coming down the pike.
Get on a Global Law Firm’s Mailing List
One of the best ways to keep up-to-date is to join a global law firm’s mailing list. Many large law firms offer country-specific and region-specific client alerts, as well as alerts dedicated to one or more practice areas. Because I was a Gibson Dunn lawyer in the past, I receive Gibson Dunn legal alerts and analysis emails. I am signed up to receive alerts for their bribery/FCPA, data privacy, antitrust, trade sanctions, and modern slavery practices. I also receive information on legal updates in the UK, France, and Germany – countries in which my company Spark Compliance Consulting regularly works. These mailing lists can help you feel more confident. You can also ask the firm to add your Compliance Champions to the country-level alerts to help keep them informed of new laws or guidance within the country.
Remember that it Generally Takes a Long Time to Enact a Law
Other than sanctions (which can change quickly), most laws go through a lengthy legislative process before being enacted. In addition, many compliance-related laws have a grace period during which enforcement is stayed so that companies have a chance to respond to the law with new controls or procedures.
Most compliance officers were well prepared when the Brazil Clean Companies Act, French Sapin II, and California CCPA came into force because the requirements of the laws had been extensively written about and were well known. Since legislatures move slowly, you can take comfort in the fact that you’ll likely hear of major laws long before they come into force.
Document Your Decisions
On the very last page of the June update to the Department of Justice’s Evaluation of Corporate Compliance Program’s guidance, the DOJ instructed companies with multi-national programs to document their decision-making process. “Prosecutors should ask the company [for] the basis for the company’s conclusion about foreign law, and how the company has addressed the issues to maintain the integrity and effectiveness of its compliance program while still abiding by foreign laws.”
Whether you are subject to the DOJ’s jurisdiction or not, it is best practice to write down your analysis of competing laws, and how you chose to model your program to meet them. Real-time documentation is always more powerful than describing your choices at a later date. Protect yourself by documenting your decision-making now.
Running a global program will always challenging. With a solid plan for assistance, and the documentation to back up your decision-making, the challenge can be substantially reduced.
