Sustainable strategies: catalyze the change through compliance

Chinese culture influences the way people think, act, and hence the extent to which they should be held responsible for their behavior. As a double-edged sword, the culture per se can contribute to illegal behaviour like bribery, while it can also be a vehicle for promoting good ethical conduct.[1] As transactions cross borders, simultaneously satisfying each of the overlapping anti-bribery laws of multiple jurisdictions can be challenging. It is never enough to stress the need for a culture of compliance. This section explores how to tackle bribery through taking preventive measures and fostering a culture of integrity.

Make gift-giving policies jurisdiction specific

MNCs’ compliance regimes tend to reflect their parent companies’ corporate culture and strategic imperatives. One of the primary risks that the African culture posed to MNCs is that they could run afoul of the FCPA or the UKBA. Foreign MNCs may attempt to defend their bribery in reference to the local prevalent corrupt culture. The claim that bribery exists intrinsically in local culture remains a plausible pseudo proposition, which misleads the MNCs’ African anti-briber}' efforts. Extraterritoriality arguably disregards the values of other cultures, given that gift policies vary considerably from jurisdiction to jurisdiction. What might well constitute a reasonable gift in one country may violate anti-briber}' laws in other jurisdictions. The UKBA provides that: ‘any local custom or practice is to be disregarded unless it is permitted or required by the written law applicable to the country or territory concerned.’ Law transforms a culture that tolerates corruption, while simultaneously the culture triggers a response of enacting more anti-briber}' laws. In this regard, the law is not merely a reflection or by-product of culture, but can also serve a legitimate constitutive role in forming culture. With more anti-briber}' laws with extraterritorial effect, the room for customary gift-giving practices is shrinking, even though they do not truly constitute briber}'. None of Article 164, FCPA, or Briber}' Act 2010 grants a culture

Chinese multinational corporations 195 defense, so it is a challenge for MNCs to ensure that they are upholding the law.[2] MNCs should display subcultures and countercultures in their various African operations, instead of behaving in a ‘when in Rome do as the Romans do’ way.

The concept ofguanxi is central to Chinese society and thus heavily influences corporate behaviour. It is a misconception that a corporate culture of corruption exists in which bribery is an integral part of doing business. MNCs are thus expected to focus increasingly on strengthening their anti-bribery compliance programs, simply because they are forbidden to pay bribes across jurisdictions. Both Chinese and Western MNCs must prohibit bribery despite local custom. The environment of pervasive corruption does not justify that MNCs should follow the local way to secure business opportunities. Bribery is normally disguised in the African customary practices and facilitated by MNCs’ local subsidiaries. A cultural sensitivity card is sometimes played by foreign MNCs, although it is often driven by profit motives. However, invoking culture as a justification for making bribes can, by no means, be considered as a defense if prosecuted. The MNCs should in all circumstances respect the value of free market, but not use the local culture as an excuse for committing bribery. There is substantial convergence on values about bribery' across various cultures. As discussed in previous sections, bribery' is never justified as a paradoxical reflection of cultural norms. Otherwise, such plausible sophistry' will compromise efforts to produce justice and integrity. The mitigation considerations enshrined in both the Bribery' Act Guidelines and the FCPA Guide remain the same, in substance, as rationales behind China’s ^««»xi-oriented cultures.

  • [1] Thomas Donaldson, ‘Values in Tension: Ethics Away from Home’ Harvard Business Review (September-October 1996). 2 Duane Windsor and Kathleen Getz, ‘Multilateral Cooperation to Combat Corruption: Normative Regimes Despite Mixed Motives and Diverse Values* (2000) 33 (3) Cornell International Law Journal 731, 772. 3 Bribery Act 2010 s 5. 4 Menachem Mautner, ‘Three Approaches to Law and Culture’ (2011) 96 Cornell Law Review 839, 867; Philip Nichols, ‘The Viability of Transplanted Law: Kazakhstani Reception of a Transplanted Foreign Investment Code’ (1997) 18 University' of Pennsylvania Journal of International Economic Law’ 1235, 1271. 5 Timothy Fort and James Noone, ‘Gifts, Bribes, and Exchange: Relationships in NonMarket Economics and Lessons for Pax E-Commercia’ (2000) 33 Cornell International Law Journal 515, 546.
  • [2] Matt Vega, ‘The Sarbanes-Oxley Act and the Culture of Bribery: Expanding the Scope of Private Whistleblower Suits to Overseas Employees’ (2009) 46 Harvard Journal on Legislation 425,454. 2 Drury' Stevenson and Nicholas Wagoner, ‘FCPA Sanctions: Too Big to Debar?’ (2011) 80 (2) Fordham Law Review 775, 820 at 788. 3 Daniel Patrick Ashe, ‘The Cultural Sensitivity Card is Often Played by Foreign MNCs Which Pay Bribes in Achieving Their Profit-Maximising Goals’ (2005) 73 Fordham Law Review 2897,2945. 4 Rose-Ackerman (n 36) 140. 5 UK Ministry of Justice, The Bribery Act 2010 Guidance (n 55).
 
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