Knowledge tools for academics

and professionals
Module Series on Anti-Corruption

Module 5
Private Sector Corruption
 UNITED NATIONS OFFICE ON DRUGS AND CRIME
Vienna

Knowledge tools for academics and professionals

UNODC Module Series on Anti-Corruption

MODULE 5
PRIVATE SECTOR CORRUPTION
Private Sector Corruption

Module 5
Background information

The UNODC Module Series on Anti-Corruption offers 14 Modules focusing on a range of core anti-corruption issues. This
includes corruption’s varied definitions and devastating effects, responses to corruption, and linkages between corruption
and different topics such as good governance, comparative politics, whistle-blowing, justice systems, human rights, gender,
education, citizen participation, peace and security.

The Modules are designed for use by both academic institutions and professional academies across the world. They are built
to help lecturers and trainers deliver anti-corruption education, including those who are not dedicated anti-corruption lecturers
and trainers but would like to incorporate these components into their courses. Lecturers are encouraged to customize
the Modules before integrating them into their classes and courses. The Modules include discussions of relevant issues,
suggestions for class activities and exercises, recommended class structures, student assessments, reading lists (with an
emphasis on open access materials), PowerPoint slides, video materials and other teaching tools. Each Module provides an
outline for a three-hour class, as well as includes guidelines on how to develop it into a full course.

The Modules focus on universal values and problems and can easily be adapted to different local and cultural contexts,
including a variety of degree programmes as they are multi-disciplinary. The Modules seek to enhance trainees and students’
ethical awareness and commitment to acting with integrity and equip them with the necessary skills to apply and spread these
norms in life, work and society. To increase their effectiveness, the Modules cover both theoretical and practical perspectives,
and use interactive teaching methods such as experiential learning and group-based work. These methods keep students
and trainees engaged and help them develop critical thinking, problem solving, and communication skills, all of which are
important for ethics education.

The topics of the Modules were chosen following consultations with academics who participated in a meeting of experts
convened by UNODC, in Vienna in March 2017. The experts emphasized the need for increased anti-corruption education
globally and advised on core areas to be addressed through the Modules. They considered it paramount that the Modules
prepare university students and trainees for value driven effective action, keep students engaged, lend themselves to adaptation
to different regional and disciplinary contexts, and allow lecturers to incorporate them as anti-corruption components within
existing university courses and disciplines.

To achieve these objectives, the experts recommended that the Modules have a range of characteristics, ultimately being able to:

» Connect theory to practice » Draw on good practices from practitioners

» Emphasize the importance of integrity and ethics to » Link integrity and ethics to other global issues and the
everyday life SDGs
» Encourage critical thinking » Adopt a multi-disciplinary and multi-level approach
» Stress not only the importance of making ethical » Focus on global ethics and universal values
decisions but also demonstrate how to implement the while leaving room for diverse regional and cultural
decisions perspectives
» Use innovative interactive teaching methods » Employ non-technical and clear terminology
» Balance general ethics with applied ethics » Be user-friendly

Drawing on these recommendations, UNODC worked for over a year with more than 70+ academic experts from over 30
countries to develop the 14 University Modules on Anti-Corruption. Each Module was drafted by a core team of academics
and UNODC experts, and then peer-reviewed by a larger group of academics from different disciplines and regions to ensure
a multi-disciplinary and universal coverage. The Modules passed through a meticulous clearance process at the UNODC
headquarters before finally being edited and published on its website as open-source materials. In addition, it was agreed
that the content of the Modules would be regularly updated to ensure that they are in line with contemporary studies and
correspond to current needs of educators.

The present knowledge tool has been developed by the UNODC Corruption and Economic Crime Branch (CEB), as part of the
Education for Justice initiative under the Global Programme for the Implementation of the Doha Declaration.

4
Private Sector Corruption

Module 5
Disclaimers

The contents of the UNODC Module Series on Anti-Corruption do not necessarily reflect the views or policies of the United
Nations Office on Drugs and Crime (UNODC), Member States or contributory organizations, and neither do they imply any
endorsement. The designations employed and the presentation of material in these modules do not imply the expression of any
opinion whatsoever on the part of the UNODC concerning the legal or development status of any country, territory, city, or area,
or of its authorities, or concerning the delimitation of its frontiers or boundaries. UNODC encourages the use, reproduction,
and dissemination of material in these modules. Except where otherwise indicated, content may be copied, downloaded, and
printed for private study, research, and teaching purposes, or for use in non-commercial products or services, provided that
appropriate acknowledgement of UNODC as the source and copyright holder is given and that UNODC endorsement of users’
views, products or services is not implied in any way.

Materials provided in this document are provided “as is”, without warranty of any kind, either express or implied, including,
without limitation, warranties of merchantability, fitness for a particular purpose and non-infringement. UNODC specifically
does not make any warranties or representations as to the accuracy or completeness of any such Materials. UNODC
periodically adds, changes, improves or updates the Materials in the module without notice.

Under no circumstances shall UNODC be liable for any loss, damage, liability or expense incurred or suffered that is claimed
to have resulted from the use of this module, including, without limitation, any fault, error, omission, interruption or delay
with respect thereto. The use of this module is at the User’s sole risk. Under no circumstances, including but not limited to
negligence, shall UNODC be liable for any direct, indirect, incidental, special or consequential damages, even if UNODC has
been advised of the possibility of such damages.

The User specifically acknowledges and agrees that UNODC is not liable for any conduct of any User.

Links to Internet sites contained in the present modules are provided for the convenience of the reader and are accurate at
the time of issue. The United Nations takes no responsibility for their continued accuracy after issue or for the content of any
external website.

Preservation of immunities

Nothing herein shall constitute or be considered to be a limitation upon or a waiver of the privileges and immunities of the
United Nations, which are specifically reserved.

The United Nations reserves its exclusive right in its sole discretion to alter, limit or discontinue the Site or any Materials in any
respect. The United Nations shall have no obligation to take the needs of any User into consideration in connection therewith.

The United Nations reserves the right to deny in its sole discretion any user access to this Site or any portion thereof without
notice.

No waiver by the United Nations of any provision of these Terms and Conditions shall be binding except as set forth in writing
and signed by its duly authorized representative.

These modules have not been formally edited.

5
Private Sector Corruption

Module 5
Table of Contents
Introduction 07

Learning outcomes 07

Key issues 08
Public sector corruption versus private sector corruption 08
Forms and manifestations of private sector corruption 09
Consequences of private sector corruption 10
Causes of private sector corruption 11
Responses to private sector corruption 14
Preventing private sector corruption 17
Collective action and public-private partnerships against corruption 24
Conclusion 26
References 27

Exercises 31
Pre-class exercise 1: What do we know about business integrity? 31
Pre-class exercise 2: Case studies 32
Exercise 1: Is there a difference between public and private corruption? 33
Exercise 2: Assessing risks and developing mitigating measures 33
Exercise 3: The consultant 35
Exercise 4: Anti-corruption ethics and compliance programmes 37
Exercise 5: Collective action role play 38

Possible class structure 39

Core reading 40

Advanced reading 41

Student assessment 43

Additional teaching tools 44

PowerPoint presentation 44
Video material 44
Websites 45
Other tools 46

Guidelines to develop a stand-alone course 47

6
Private Sector Corruption

Module 5
Introduction

The study of corruption has in the past focused on the public sphere, where violations such as public
officials misusing public funds or accepting bribes typically came under scrutiny. Private sector
actors in this scenario were generally understood to be the bribe givers, and thus corruption that
occurred entirely within the private sector was not addressed or regulated. However, private sector
corruption has come to the forefront of attention in recent decades, because it poses somewhat
different challenges, and also contributes considerably to the problems created by corruption. Private
sector corruption is the focus of the present Module. In particular, the Module addresses some of the
most common forms of private sector corruption, and discusses their causes and consequences,
as well as possible responses and measures to prevent corruption in the private sector. It explains
how corruption adversely affects all businesses, from small and medium-sized enterprises (SMEs) to
multinational corporations, from domestic to foreign companies, and from recently founded to long-
established companies. The Module also discusses the role of the private sector in fighting corruption
more broadly in society, particularly in collaborative efforts such as collective action projects and
public-private partnerships. The Module builds upon the discussions on public sector corruption in
Module 4 of the UNODC Module Series on Anti-Corruption and the discussions on business integrity
in Module 11 of the UNODC Module Series on Integrity and Ethics1.

Learning outcomes

• Describe the forms and manifestations of private sector corruption

• Understand the causes and consequences of private sector corruption, and the role of a culture of
corruption

• Critique different responses and measures to address and prevent private sector corruption

• Explain the differences between public and private sector corruption

• Describe and assess the role of the private sector in the fight against corruption, including through
public-private partnerships and collective action initiatives

1 Available at

7
Private Sector Corruption

Module 5
Key issues

Corruption is a complex phenomenon, without a uniform definition. An overview of the different forms
and definitions of corruption, as well as its harmful effects across the globe, is available in Module 1 of
the UNODC Module Series on Anti-Corruption. For present purposes, it should be noted that the United
Nations Convention against Corruption (UNCAC)2 refrains from providing one overarching definition
of “corruption”. Rather, it defines and classifies various forms of corruption as criminal offences,
such as bribery and embezzlement (in both the public and private sectors); abuse of functions (i.e.
when those performing public functions misuse their power to obtain a benefit); trading in influence;
illicit enrichment; and money-laundering. With 189 States parties (as of January 2022), UNCAC is
approaching universal adherence, and the different forms of corruption as defined by the Convention
can be considered internationally accepted.

This Module discusses two related topics: the phenomenon of corruption in the private sector,
including its forms, causes, consequences, responses and prevention measures, and the ways in
which the private sector can contribute to the fight against corruption. These two aspects of the
Module are intertwined because some of the means of fighting corruption in the private sector can
also help to reduce and prevent corruption in society more broadly. Thus, the Module focuses on
different measures that businesses can take to fight and prevent corruption internally, such as risk
assessments, anti-corruption ethics and compliance programmes, and codes of ethics, but it also
addresses collaborative approaches that prevent corruption both in the private sector and in society
more broadly. The Module does not discuss anti-corruption measures such as law enforcement and
whistle-blowing regulations – these are discussed in Module 6 and Module 13 of the UNODC Module
Series on Anti-Corruption.

Public sector corruption versus private sector corruption

When learning about private sector corruption, it is helpful to keep in mind the differences between
private sector corruption and public sector corruption. For present purposes, public sector corruption
primarily abuses government resources whereas private sector corruption primarily abuses private or
commercial resources. While UNCAC defines a number of different corruption offences, corruption is
sometimes understood in general terms as “the abuse of entrusted power for private gain”, in accordance
with the definition proposed by the non-governmental organization Transparency International3 (TI). It
is clear from both the TI definition of corruption, as well as the corruption offences defined in UNCAC,
that corruption occurs in both the public and private sectors. Public officials are entrusted with power
to serve the public interest, whereas employees in the private sector are entrusted with power to serve
legitimate company interests. In both contexts, corruption occurs when individuals or organizations
promote interests that differ from the interests they were entrusted to serve. Identifying what interest
should be served, and who or what is being served instead, can help us distinguish between public
sector corruption and private sector corruption. Public sector corruption is addressed in Module 4 of
the UNODC Module Series on Anti-Corruption.

2 Available from the corruption section of the United Nations Office on Drugs and Crime website (www.unodc.org).
3 For more information see www.transparency.org.

8
Private Sector Corruption

Module 5
Forms and manifestations of private sector corruption
Corruption in business is a universal problem, affecting companies of all sizes in all countries.
Companies could be both victims and perpetrators of corruption. In a business context, corruption
can include false or misleading financial reporting, procurement fraud, embezzlement, bribery, and a
range of other acts. Below are some examples of common schemes and manifestations of corruption
in business (see Martini, 2014, and Rose-Ackerman, 2007):

• Commercial bribery and kickbacks: These involve employees of one company giving payments,
undue advantage or expensive gifts to employees of another company to secure an advantage.
Examples include paying procurement staff to sway their decision in favour of the paying
company, giving an expensive gift to a bank manager to secure a loan, and various forms of
kickbacks.

• Extortion and solicitation: This occurs when an employee of a company requests a payment,
undue advantage, expensive gifts, or sexual favours in return for conducting specific business-
related tasks or making particular decisions.

• Gifts and hospitality: Excessive gifts and hospitality are given to employees to influence business
decisions or tasks. This kind of gift might be travel, luxury items or tickets to sporting events.

• Fees and commissions: Agents and intermediaries are paid fees and commissions beyond what
is considered the industry standard, for the purpose of altering business decisions or tasks.
Characterizing a payment as a fee or commission might be a way of disguising the payment of a bribe.

• Collusion: This occurs when, for instance, a labour union employee and a member of the
company’s management team exchange favours that result in employees’ interests not being
accurately represented.

• Trading of information: This happens when a business employee offers or receives a bribe in
exchange for confidential information, where the bribe could take a number of different forms.
When confidential information is the basis for trading in a company’s stock, bonds or other
securities, this constitutes an offence called “insider trading”.

• Trading in influence: Sometimes referred to as influence peddling, this activity occurs when a
business employee gives payments, undue advantage or expensive gifts to a public official,
expecting to receive an undue advantage from the public authority in return. An example is
when business people make political donations with the intent of influencing political decisions,
policies or laws.

• Embezzlement: This happens when employees misappropriate anything of value that was
entrusted to them because of their position.

• Favouritism, nepotism, cronyism, clientelism: These forms of corruption occur when a person or
group of persons are given unfair preferential treatment at the expense of others.

9
Private Sector Corruption

Module 5
While these examples of private sector corruption are non-exhaustive, they illustrate that corruption
in business is much more than just bribery. Contrary to a popular sentiment, private sector corruption
does not usually involve a suitcase or envelope full of money. The examples listed above demonstrate
that there are many grey areas, where business practices may be legal but are at risk of being misused,
such as gifts and hospitality. Political donations and sponsorships can also be misused for private
gain. Some illegal business practices, such as kickbacks or small bribes, may be so common in some
countries that they are perceived as normal and are no longer questioned.

Corruption in business takes different forms, but it can also occur at different levels of corporate
activity or spheres of influence: within the company, within the supply chain, within the wider business
operation, and within the societal surroundings. An image that illustrates how corruption manifests
at these different levels is featured in the PowerPoint slides provided in the Additional teaching tools
section of this Module.

Consequences of private sector corruption

A vast body of literature focuses on public sector corruption, but there is very little systematic analysis
of private sector corruption (Argandoña, 2003; Gopinath, 2008). International anti-corruption efforts
have also mostly focused on public sector corruption (Sööt and others, 2016). This makes it difficult to
estimate the exact cost of private sector corruption, although it is clear that private sector corruption
has serious and lasting impacts on the economy and wider society.

The occurrence of private sector corruption is reportedly high. According to the Global Economic
Crime and Fraud Survey 20184 by PricewaterhouseCoopers, 28 per cent of the companies that reported
internal corruption in the last two years noted that they had suffered from business misconduct, and
45 per cent said they had suffered from asset misappropriation. A World Bank’s Enterprise survey5,
which measures the incidence of bribery in companies, shows that in some countries up to 51 per
cent of all firms experience at least one bribe payment request per year. Private corruption affects the
entire supply chain, as it distorts markets, undermines competition, and increases costs to firms. It
prevents a fair and efficient private sector, reduces the quality of products and services, and leads to
missed business opportunities (UNODC, 2013b).

Even if we adopt the position that the primary goal of business is to increase wealth or profits, using
corruption to maximise profit will generate negative effects for the company, such as decreased
employee morale, reduced productivity, loss of shareholder and investor confidence, and damaged
reputation and business relations. Companies also have to bear the costs associated with investigation
and remedial action (Lee-Jones, 2018). A few of these impacts are explored below. Conversely, in
many contexts, “higher levels of firm integrity correspond with stronger commercial performance” (U4,
2017). Furthermore, according to the United Nations Global Compact website:

4 Available at www.pwc.com/gx/en/services/advisory/forensics/economic-crime-survey.html.
5 Available at www.enterprisesurveys.org/data/exploretopics/corruption.

10
Private Sector Corruption

Module 5
There is growing understanding – especially by business leaders and investors ahead of the curve –
that it is not enough for companies to concern themselves only with short-term profits because natural
disasters, social unrest or economic disparity can damage long-term prosperity. The businesses that
understand this challenge and take action will be a step ahead.

Below are some of the ways in which private sector corruption erodes economic development and
investment:

• Unfair competition: The company offering the bribe gains an unfair advantage over its
competitors, whose products and services will not even be considered (Boles, 2014). While
some companies pay bribes to gain advantages, others may be unwilling or unable to do so.
Thus, corruption undermines competition because companies that refuse to pay bribes are
likely excluded from the market.

• Inflated costs: The lack of competition caused by corruption can result in higher prices and
poorer quality of goods and services, ultimately harming the consumers (Lee-Jones, 2018). For
example, a company already paying bribes to sell its products may consider it unnecessary to
invest in innovations, new technologies, training of personnel and other activities that could
improve its productivity and quality of services or products.

• Societal impact: Business corruption can have devastating impacts on the environment and
human rights (Martini, 2014). For a detailed discussion on how corruption affects human rights,
see Module 7 of the E4J University Module Series on Anti-Corruption.

For a more comprehensive discussion on the diverse effects of corruption, see Module 1 of the E4J
University Module Series on Anti-Corruption.

Causes of private sector corruption

Sector- or industry-related causes

While corruption in a business context affects companies of all sizes, some sectors or industries are
more vulnerable to corruption than others. For example, given the secrecy and large orders involved,
military procurement is particularly vulnerable to malfeasance and the defence industry is therefore
exposed to high corruption risks (for a more detailed discussion of this issue, see Module 11 of the
UNODC Module Series on Anti-Corruption). A report from Risk Advisory (2019) suggests that, on a
global level, the industries most plagued by corruption are oil and gas, construction and development,
and infrastructure. There are some variations on the regional level, also reflected in this report. In
general, contract-dependent sectors are more vulnerable to corruption; they also have a lower quality
of management and lower levels of performance. For example, high-tech industries, which acquire
components of their products through a large number of contracts with suppliers, are more vulnerable
to corruption and institutional inefficiencies compared to the food industry, where fewer contracts are
required and components are available in the retail market (Athanasouli and Goujard, 2015).

11
Private Sector Corruption

Module 5
Economic causes

While personal gain is often the most frequent cause of public sector corruption, it is only one of
the causes of private sector corruption. Where they have occurred, liberalization and deregulation
have fostered a market driven by intense competition, leading companies to engage in corruption
to maximize operational efficiency, safeguard development and conquer new markets (Pakstaitis,
2019). As companies use corrupt practices to gain a competitive advantage, they create a snowball
effect throughout their industries, prompting other companies to engage in similar practices to remain
competitive in the market. As noted earlier, corruption undermines competition, because companies
that refuse to pay bribes can be excluded from the market. Reduced competition leads to higher prices
and poorer quality of goods and services, ultimately harming the consumers (Lee-Jones, 2018).

Unfortunately, corruption can appear to be a workable and effective business practice for survival and
growth. If maximizing profit by any means is seen as the sole company objective, then evaluating the
potential costs versus benefits of corruption can seem like a legitimate exercise – which may justify
corruption. Corrupt practices can become institutionalized to achieve strategic objectives, particularly
in periods of economic hardship.

However, evidence shows that corruption can lead to such benefits only in the short term, if at all,
and only for a limited number of companies (Hanousek and Kochanova, 2015). Over the long term,
corruption is rather a constraint on development and a restricting force on market entry and growth
for all firms (Bai and others, 2019; Forgues-Puccio, 2013). A company with a culture of corruption is
unlikely to be sustainable as it will be unattractive to principled employees, investors, clients, and other
stakeholders. The U4 Anti-Corruption Resource Centre goes even further by stressing “that higher
corruption at firm level is strongly correlated with lower firm growth, even in the short term” (U4, 2017
referring to findings of Fisman and Svensson, 2007).

Individual causes and rationalizations

In the private sector, as elsewhere, individuals engage in a series of rationalization strategies to

justify their unethical behaviour. According to behavioural science, some people will cheat to gain an
advantage if they are able to rationalize their behaviour and still feel good about themselves (Ariely,
2013). Johannsen and others (2016) found that national context, company size, the nature of the
company as domestic or foreign, workplace diversity, individuals’ gender identity, age, and length of
tenure are the key factors that influence rationalizations of individuals in the private sector.

Rationalizations for unethical behaviour are discussed at length in Module 6 and Module 7 of the
UNODC Module Series on Integrity and Ethics. For present purposes, the following three common
rationalizations and their relevance to the private sector are elaborated upon: “Everyone else is doing
it”, “It’s not my responsibility” and “The end justifies the means”.

12
Private Sector Corruption

Module 5
• “Everyone else is doing it.” This rationalization can manifest itself in different situations.
First, when unethical behaviour is normalized across a group within a company or in the entire
company (or industry), there is no sanction for engaging in the behaviour. Second, the rationale
that everyone else (i.e. competitors) is doing it justifies the corrupt conduct. The Alliance for
Integrity (2016), a business-driven, multi-stakeholder initiative aiming to promote transparency
and integrity in the private sector, points out that among the top ten reasons or justifications
that employees give for engaging in corrupt behaviour are: “You don’t understand how business
is done here” or “If we don’t do it, someone else will”. When individuals perceive that their
competitors are engaging in corrupt practices, they can justify undertaking comparable actions
with the rationale of securing the company’s well-being as well as their personal well-being, while
still feeling that they are a “good” person (Johannsen and others, 2016). This rationalization
is also referred to as a “collective action problem” (Persson, Rothstein and Teorell, 2013). The
understanding of corruption as a collective action problem is explained in Module 4 of the
UNODC Module Series on Anti-Corruption.

• “It’s not my responsibility.” This statement reflects a denial of responsibility. Individuals

rationalize engagement in corruption as being beyond their control. Typically cited reasons for
employees trying to deny responsibility are: “I didn’t know that was corruption”; “I didn’t do it
for me; I did it for my organization”; “I don’t know how to respond to corruption” (Alliance for
Integrity, 2016).

• “The end justifies the means.” Corruption can be perceived as generating positive collective
effects, because it – however incorrectly – appears to be in the company’s best interests.
Corruption can also be rationalized because it has positive effects for individuals, such as
enabling them to keep their jobs. Business people on occasion also justify corruption as a win-
win situation where no one gets hurt (Alliance for Integrity, 2016). This is a particularly prevalent
rationalization in smaller businesses (Johannsen and others, 2016).

Corporate culture
Economic and individual causes of corruption can lead to the development of (and be supported by) a
corporate culture of corruption. Thus, a culture of corruption is both an outcome and a further cause
of corruption. Taylor (2016) explains that a culture normalizes corruption through three processes:

• Institutionalization: the embedding of corrupt practices in company structures and processes;

• Rationalization: self-serving ideologies that justify corrupt practices; and

• Socialization: new employees being socialized into systems and norms that tolerate or permit
corruption. Peer pressure can socialize employees into corrupt practices. In the context of
private sector corruption, peer pressure refers to actions undertaken by way of an executive or
management order (Johannsen and others, 2016).

A corporate culture of corruption is brought about by a multiplicity of factors such as competition and
growth orientation, complicated leadership structures, and high levels of autonomy and discretion, with
a lack of transparency, accountability and ethics. In such an environment, even “rules and processes
put in place to promote integrity may be selectively enforced and easily evaded, as shown in many
recent cases under anti-bribery statutes” (Taylor, 2016). For a related discussion on the ways in which
psychology, environment and behaviour can influence “moral blindness” and unintended unethicality,
see Module 6, Module 7, and Module 8 of the UNODC Module Series on Integrity and Ethics.

13
Private Sector Corruption

Module 5
To combat and replace cultures that support corruption, increased attention in practice and scholarship
has been devoted to the need to foster a corporate culture of integrity. As explained in further detail in
Module 11 of the UNODC Module Series on Integrity and Ethics, when a corporation acts ethically, it
fosters a culture of integrity that motivates employees individually to act ethically. This contributes to
meaningful and purposeful lives for the employees and ultimately to a better society. To achieve such a
culture, the business can make use of modelling, mentoring and other activities that promote integrity,
as well as the application of values, ethical codes, rules and regulations. In particular, to enable a
culture of integrity and demonstrate to employees that the business is willing to “walk the talk”, the
business should ensure that its performance management and reward systems do not contradict or
undermine its positive core values. While there is no one-size-fits-all model, every business should
implement an approach that goes beyond a tick-the-box exercise, i.e. beyond compliance with rules
and regulations, and towards fostering a positive culture of integrity. Strong ethical values must be at
the core of such a programme, and those values must be identified and developed carefully (ideally co-
created with various stakeholders). Ethical behaviour should be embedded in all day-to-day operations
and communicated in interactions with stakeholders (Hodges and Steinholtz, 2017).

Responses to private sector corruption

Owing to its serious societal impact, the fight against private sector corruption has gained traction
in international law and policy in recent decades. One of the most significant shifts in anti-corruption
legislation affecting the private sector was the enactment, in 1977, of the Foreign Corrupt Practices
Act (FCPA) of the United States. Given its extraterritorial reach, the FCPA affects companies globally.
The impact that FCPA had on companies’ overseas activities pushed other countries to create similar
anti-bribery laws, for instance, in 2013 the United Kingdom adopted the UK Bribery Act which has
extraterritorial application (both FCPA and the UK Bribery Act are further discussed in Module 12
and Module 13 of the UNODC Module Series on Anti-Corruption). In the international context, by
the late 1990s, an international consensus had emerged regarding the liability of legal persons (i.e.
corporations) for acts of corruption. Two important events are worth mentioning in this regard.
First, in 1994, the Organisation for Economic-cooperation and Development (OECD) established
Working Group on Bribery in International Business Transactions6, which led to the adoption, in 1977,
of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business
Transactions7. Second, in 2003, the international community adopted UNCAC which requires States
parties, in its article 26, to hold legal persons liable for committing acts of corruption. UNCAC also
defines certain anti-corruption norms as specifically applicable to the private sector. Criminalizing
private sector corruption and ensuring that companies can in fact be held liable for corruption and
be effectively sanctioned – under criminal or civil law – serve both retributive and deterrence goals,
because corporate misconduct is punished and justice is done, which sends a message that deters
companies from engaging in misconduct. Moreover, these responses to business corruption also
incentivize companies to develop preventive anti-corruption measures, such as ethics and compliance
programmes, codes of ethics, risk assessments, and due diligence procedures for business partner
scrutiny. These measures are discussed below. Following a discussion on criminalization, liability and
sanctions in relation to business corruption, the Module goes on to address preventive anti-corruption
measures in companies.

6 For more information see www.oecd.org/corruption-integrity/.

7 Ibid.

14
Private Sector Corruption

Module 5
Criminalizing private sector corruption

A major response to private sector corruption is the application of criminal anti-corruption norms to
corporations, and their enforcement through effective sanctions and incentives. For example, UNCAC
defines the crimes of bribery and embezzlement in the private sector, as well as the related offences
of concealing these crimes, laundering their proceeds, and obstructing justice. The OECD Anti-Bribery
Convention, on the other hand, focuses on the offence of bribery in overseas business activities and
establishes the responsibilities of legal persons in this regard. The enforcement of these norms –
from the detection and reporting of corruption to the investigation, prosecution and trial stages – is
discussed in Module 6 and Module 13 of the UNODC Module Series on Anti-Corruption. While those
Modules discuss enforcement measures in general, the present Module clarifies the particularities of
applying them to corporations.

Criminal law is mainly associated with individual criminal responsibility and therefore usually applies
to natural persons (individuals) and not to legal persons (corporate entities). To effectively enforce
anti-corruption norms on corporations, States need to incorporate the notion of “corporate liability”
(or liability of legal persons) into their law. Corporate liability, a concept discussed in more detail
below, opens the door to imposing various sanctions on companies that violate anti-corruption
norms. Such sanctions can include fines, confiscation, contract remedies, suspension and debarment,
loss of benefits, and liability for damages. A discussion of the range of sanctions and incentives
that have been developed to prevent and address corruption in the private sector is available in
the United Nations Office on Drugs and Crime (UNODC) publication entitled A Resource Guide on
State Measures for Strengthening Corporate Integrity8. Given the limited scope of this Module, the
discussion below focuses on only one of these sanctions, that of suspension and debarment, which
States and international organizations are increasingly using in the fight against corruption. When
natural persons break the law in a serious criminal manner, they can be imprisoned. As the threat of
imprisonment is limited to individuals, suspension and debarment can be a comparable deterrent for
companies, especially if the company relies on government contracts.

Corporate liability

Historically, corporations were outside the scope of the criminal law, which focused on personal
guilt and notions of culpability and blame. Anti-corruption enforcement, accordingly, was aimed at
individuals and primarily targeted public officials engaging in bribe-taking and embezzlement of public
funds and individuals offering bribes – although the latter were targeted to a much lesser degree.
Recently, however, the debate on how to get companies to comply with domestic and international
anti-corruption laws and regulations has intensified. Many of the biggest corruption investigations
concern legal persons rather than natural persons. The liability of legal persons such as corporations
is also known as “corporate liability” and is a key feature of the global fight against corruption (Lee-
Jones, 2018).

Corporate liability was introduced partly because traditional legal tools, such as individual criminal
responsibility, have proved insufficient to curb crime. Decentralized corporate structures and complex
decision-making processes make it difficult to identify individual wrongdoers.

8 Available from the United Nations Office on Drugs and Crime website (www.unodc.org).

15
Private Sector Corruption

Module 5
In most cases of corporate corruption, senior management might not directly participate in the
behaviour constituting the actual offence but nonetheless play an important role by failing to supervise
employees effectively or by incentivizing the behaviour that leads to the offence. Case studies of large
corporations reveal that senior management may have created or cultivated a corporate culture that
incentivizes wrongdoing by more junior employees. In that situation, senior management may have
moral responsibility. It is, however, difficult to pursue charges against individual managers owing to the
very nature of corporations and their extensive systems of delegation. For an analysis of contemporary
case studies that illustrate how delegation and responsibility are approached in corporations such as
General Motors, BP and Wells Fargo, see Buell (2018).

Standards of corporate liability may be objective or subjective. Objective liability, also known as strict
liability or vicarious liability, attributes to the corporation any wrongdoing committed by its employees
within the scope of their duties. Once an employee has committed an offence, the corporation is
also liable. Therefore, pure objective liability systems encourage the implementation of preventive
policies, but discourage self-reporting of wrongdoing and cooperating with the authorities during
investigations.

Subjective liability, also known as fault-based liability, imposes a duty on companies to prevent
wrongdoing by educating employees and implementing internal controls on company activities.
Pure subjective liability systems excuse companies that have otherwise complied with their duties,
which are usually defined by the law as implementing an effective compliance programme. Subjective
liability systems also have risks: since the companies concentrate on ticking boxes with respect to the
elements listed in the law that define effective compliance systems, measures may exist on paper but
not in practice. Furthermore, there are no incentives for aligning crucial policies with the compliance
system, e.g. compensation, promotion, and bonuses. For a related discussion on the relationship
between duty, ethics and integrity, see Module 1 of the UNODC Module Series on Integrity and Ethics.
Global frameworks such as UNCAC do not prescribe a specific type of liability, but there is a trend
towards hybrid liability systems. In an increasing number of jurisdictions, companies may receive
reduced fines if they can prove they have made a significant effort to prevent corruption, for example
by implementing effective internal controls and procedures, educating employees, and preventing
misconduct by third parties acting on behalf of the company. In some jurisdictions such as Australia,
Hungary and Slovenia, self-reporting wrongdoing and cooperating with authorities during the
investigation may also reduce penalties. For an analysis of how each OECD jurisdiction regulates
corporate liability for corruption, see OECD (2016).

Suspension and debarment

Debarment from procurement is an important regulatory mechanism against corruption. Debarment

policies can exclude certain suppliers and contractors from profitable contracts owing to their
engagement in corrupt and unethical practices. Debarment determinations take a variety of pathways.
In Canada, for example, there is a “rules based and automatic” debarment system. In the United States,
the approach is much more discretionary, focusing on “present responsibility” (Acorn, 2016, p. 1)

16
Private Sector Corruption

Module 5
On an international level, the World Bank’s suspension and debarment system, overseen by the
Office of Suspension and Debarment, is a comprehensive defence against wrongdoers. The system
sanctions corrupt, fraudulent, collusive, coercive and obstructive practices (see World Bank, 2015, for
full definitions). There are five different sanctions that could be imposed: debarment with conditional
release, fixed period debarment without conditional release, conditional non-debarment, public letter
of reprimand and restitution. The World Bank assesses aggravating and mitigating factors when
determining which one of these five possible sanctions to apply (World Bank, 2015).

While the threat of imprisonment is limited to individuals, suspension and debarment can be a
comparable deterrent for companies that rely on government contracts. Companies may also be
required to dismiss employees as a condition of settlement. Although technically not a State sanction,
this can be an effective deterrent for individuals, particularly managers or other senior personnel
who may have difficulty finding comparable alternative employment. An organization’s managers
and employees should understand, as part of their anti-corruption training, that bribery is not only
detrimental to all stakeholders, but an offence that would lead to the termination of their employment
(a “zero-tolerance policy”).

Preventing private sector corruption

Stricter and more nuanced regulation requires and incentivizes companies to strengthen compliance
with rules, but also to focus on their values and develop an ethical culture. Stakeholders such as
employees, customers, shareholders, business partners and civil society expect even higher
standards of integrity and ethical business conduct than the imposition of mere rules can enforce.
Focusing on rules and regulations alone will often fall short of meeting these higher expectations of
ethical business practices. Therefore, an effective ethics and compliance programme, which goes
beyond mere compliance and aims to foster a culture of integrity, should include internal, external and
collective measures.

From legal to behavioural approaches

The global application of legal anti-corruption norms for companies creates incentives for businesses
to adopt ethics and compliance programmes that can detect and prevent corruption in organizations
to avoid sanctions and reputational damage. Besides, for companies, engaging in efforts to prevent
corruption makes good business sense given the negative impact corruption can have on individual
businesses and the market as a whole. This also involves altering both organizational behaviour and
corporate culture (Sullivan and others, 2013; UNODC, 2013a).

Legal compliance approaches that merely rely on rules to be enforced by the company itself, with
threats of criminal or civil punishment to back them, have historically been the primary mechanism
to address corruption in the private sector. Several governments and international organizations have
issued guidelines to help companies map their anti-corruption ethics and compliance programmes.

17
Private Sector Corruption

Module 5
UNODC, for example, has published An Anti-Corruption Ethics and Compliance Programme for
Business: A Practical Guide9 and an Anti-Corruption Ethics and Compliance Handbook for Business
10
(in cooperation with OECD and the World Bank). The International Standardization Organization has
even approved a standardized anti-bribery management process, the ISO 3700111.

However, early compliance programmes were problematic, because companies tended to focus on
processes such as enacting codes of conduct and implementing internal rules and procedures without
assessing the outcomes of these processes and the impact they had on ethical and behavioural
issues within the companies (Hodges and Steinholtz, 2017). Therefore, such processes did not disrupt
companies’ problematic business models. Compliance programmes were seen as separate from
core business operations, and programmes were therefore unable to change the values and working
methods of the organization. As a result, corporate cultures of wrongdoing remained largely intact.
When large-scale cases of corruption emerged, demonstrating that often corporate wrongdoing was
not caused by rogue employees but by a specific corporate culture, the focus began to shift to aligning
organizational culture with anti-corruption goals (Torsello, 2018).

Legal approaches to corporate liability addressed this shift through the lens of orthodox economics
and rational choice theory (See, e.g., Becker, 1968). In a nutshell, the assumption was that the right mix
of detection and sanction was the key to deterring misbehaviour. Relying exclusively on deterrence in
practice is, however, too costly and ineffective, both economically and socially (Hodges and Steinholtz,
2017). Psychological and behavioural science research shows that changes in behaviour motivated
by incentives and sanctions come at a high cost. These changes require the provision of financial
and personnel resources, for example surveillance systems and systems of incentives and related
tracking. Moreover, anti-corruption ethics and compliance programmes strongly based on detection
and sanctions send a message of distrust within an organization. Surveillance can have a particularly
negative impact on corporate culture. In an environment of distrust, employees may be reluctant to
voluntarily observe and disclose breaches of internal policies and may feel disengaged and under
continual suspicion.

To overcome a corporate culture of wrongdoing, top management needs to make clear that it does
not advocate or condone wrongdoing, and that after a proper root cause analysis and investigation,
intentional corruption will be punished. In technical jargon, this is often referred to as “tone from the
top”. Such a policy of zero-tolerance of corruption should be communicated within a framework that
couples the stick of punishment with the carrot of a positive message about the type of behaviour that
the company expects from its employees.

Conducting root cause analysis and investigations before determining whether punishment is required
also contributes towards building a “just culture” where fairness is perceived and where people can
learn from their mistakes. In such an environment, it will be possible to determine the true cause of
the problem (which might be, e.g., that targets set by senior management are impossible to meet any
other way) and to learn from the exercise and fix the underlying problem, rather than just blaming and
punishing a scapegoat.

9 Available from the United Nations Office on Drugs and Crime website (www.unodc.org).
10 Ibid.

11 Available at www.iso.org/iso-37001-anti-bribery-management.html.
18
Private Sector Corruption

Module 5
It is increasingly accepted that, compared to legal compliance approaches, behavioural change
approaches premised on value-based programmes lead to higher levels of ethical awareness, more
employees seeking advice on ethical issues, and a greater likelihood of employees reporting violations,
thus minimizing damage. Value-based programmes are premised on the assumption that employees
engage with whichever values are present in the company, pro-social or anti-social, and adopt them as
their own. When these values are oriented towards pro-social engagement, employees are more likely
to comply with rules, even when they are not monitored. Key elements in value-based programmes are
treating employees fairly, rewarding ethical behaviour, remedying unintentional unethical behaviour,
and punishing criminal behaviour (Treviño and others, 2006). A step further in this direction is to
develop a Values Pledge. This is a collective commitment of organizations to become a truly values-
driven organizations and to support the creation of value-based business environment. The UK Values
Alliance12 is a good example of an initiative which brings together individuals and companies aiming
to develop a Values Pledge in UK.

Research findings and practical experience suggest that value-based models are not only as or
more effective than traditional coercion-based models, but they are also much better at encouraging
voluntary compliance with the rules and lessening the difficulties and costs associated with creating
and maintaining effective surveillance mechanisms needed for sanction-based models. For a broader
discussion on values and value-based programmes for businesses, see Module 11 of the UNODC
Module Series on Integrity and Ethics.

The work of Langevoort (2017) is especially helpful to understand how to apply behavioural ethics
findings to the implementation of anti-corruption ethics and compliance programmes. Beyond
the obvious need to align compensation schemes and promotion practices with ethical values,
Langevoort’s work shows how widely accepted ideas about what makes a business successful, for
example group loyalty, competitiveness and risk appetite, may work as hidden pathways for unethical
behaviour.

Effective anti-corruption ethics and compliance programmes

There are different management models for internal measures that ensure business integrity and
ethics, but they all share similar characteristics:

• Business leaders and managers actively voice support for doing the right thing, and are personally
committed and willing to act on the values they espouse. However, the tone should also come
from the middle managers, who are the team leaders and backbone of companies. It can be said
that ethics is everyone’s responsibility, even though it must start at the top.

• The guiding values and commitments make sense and are clearly communicated at every
appropriate opportunity, including in a well-balanced code of ethics and guidelines.

• Internal measures are based on a risk assessment to spend limited resources as effectively as
possible.

• The values are integrated into day-to-day business, and practical resources and training are
provided to guide employees even in difficult situations and grey areas.

12 For more information, see https://valuesalliance.co.uk/values-pledge/.

19
Private Sector Corruption

Module 5
• An internal control system is established and there are various channels for reporting, such as
whistle-blowing for example.

• The anti-corruption ethics and compliance programme is understood as a continuous process

of learning, and measures are monitored and reviewed on a regular basis. Freely available
resources can be used for continuous education purposes, such as the video-based e-learning
tool13 developed jointly by UNODC and the United Nations Global Compact (which is the focus of
the pre-class exercise of this Module).

Having the full support and commitment from all levels of management is essential for creating
a culture that is driven by ethical values and implementing an effective anti-corruption ethics and
compliance programme (UNODC, 2013b). When developing the programme, consideration needs to
be given to oversight mechanisms with internal controls and record-keeping. Effective programmes
also have clear, visible and accessible policies prohibiting corruption, mitigating particular corruption
risks and addressing violations. They also establish channels for reporting on corruption (UNODC,
2015).

For larger companies, the programme should engage with business partners, subsidiaries and
intermediaries. Employee training and the promotion and incentivizing of ethical behaviour and
compliance are essential for effective implementation. The programme as a whole should be reviewed
and evaluated periodically (OECD, UNODC and World Bank, 2013). The effectiveness of measures in
place also needs to be improved from time to time. Larger companies are encouraged to expand
measures to third parties and to share good practices, for example by participating in anti-corruption
collective action projects, which are discussed further below.

Companies should not only focus on their own culture for ethics but also engage with business
partners and their supply chains. Intermediaries are very often the weak link and the public perception
does not only focus on the supplier itself but also on the companies that contracted them (UNODC,
2013b). In addition to ensuring compliance with national and international regulations, companies
should thus adopt a proactive approach to strengthen business integrity and ethics in their supply
chains, regarding their corporate responsibility and sustainable business practices.

Finally, companies can also engage in collective action such as sharing experiences in working groups
or joining initiatives such as the United Nations Global Compact. In environments in which unethical
practices are prevalent, companies could resort to collective action to try to change the status quo.
For example, they could get regulators to intervene or set standards in areas such as supply chains.
Such collective action is addressed below in further detail.

Businesses may require different approaches to create an effective ethical culture owing to their
characteristics, for example, in terms of size, legal status and/or complexity. There is no one-size-fits-
all model, but the underlying principles apply to both large and small companies, including start-ups
(OECD, UNODC and World Bank, 2013).

13 Available at https://thefightagainstcorruption.org/.

20
Private Sector Corruption

Module 5
For example, in a large business, one manifestation of the tone from the top may be a video statement
on the website or a postcard with a quote from a management representative sent to the employees,
since it is not possible for the CEO to meet in person all employees. In an owner-led smaller business,
one-on-one talks with the employees raising the importance of integrity as a core value of the company
would be appropriate.

While a small company or start-up may not need to draft an elaborate code of ethics (although that
will change as the business grows), a multinational may need to consider the best way to express its
values in different contexts and pay attention to different country regulations to which its staff will be
held accountable. The multinational will also need to assess the risks of unethical behaviour in the
different environments in which it operates to select the appropriate controls that it needs to institute.
A multinational corporation is also often faced with the problem of cultural or regional relevance.
Should there be one code that applies throughout all the countries where it operates, or should there
be a multiplicity of codes to make provision for different contexts? The most elegant solution is to
have a global code that provides high-level guidance on the values of the company, supported by
country guidelines that provide a level of flexibility, but never in contradiction with the global values or
applicable law, which may be that of another jurisdiction, such as the UK Bribery Act or the US FCPA,
since a multinational company may be subject to those statutes wherever it does business.

The Anti-Corruption Ethics and Compliance Programme for Business: A Practical Guide of UNODC
provides advice to businesses on how to put enhanced integrity standards into practice. This Guide
focuses on basic common elements that businesses should address, with a particular emphasis on the
challenges and opportunities for small and medium-sized enterprises. It draws on the United Nations
Convention against Corruption as well as other international and regional instruments that provide
businesses with guidance on how to uphold enhanced integrity standards and be good corporate
citizens.

Additional international initiatives that provide business ethics guidance include the World Economic
Forum’s Partnering Against Corruption Initiative14 (PACI), the United Nations Global Compact15 , the
Alliance for Integrity, Transparency International’s Business Principles on Countering Bribery16 , G20/
OECD Principles of Corporate Governance17, G20’s Business 20 (B20)18 and the OECD CleanGovBiz
Initiative19.

Many organizations have developed guidelines to help facilitate good practice. For instance, Mexicanos
contra la Corrupción y la Impunidad (Mexicans against Corruption and Impunity), a Mexican non-
profit that focuses on protecting the rule of law and denouncing, punishing and eradicating systemic
corruption and impunity in both the public and private sectors, has published its code of conduct20.

14 For more information, see www.weforum.org/communities/partnering-against-corruption-initiative.

15 For more information, see www.unglobalcompact.org.
16 Available from the Transparency International website (www.transparency.org).
17 Available at www.oecd.org/corporate/principles-corporate-governance/.
18 For more information, see https://b20indonesia2022.org/.
19 Available at www.oecd.org/CleanGovBiz/.
20 Available at https://contralacorrupcion.mx/quienes-somos/transparencia-e-integridad/.

21
Private Sector Corruption

Module 5
This code serves as a standard and source of guidance for businesses that are drafting and
implementing their own codes of conduct (Mexicanos contra la Corrupción y la Impunidad, 2019). For
more discussion on codes of conduct and codes of ethics in business, see Module 11 and Module 14
of the UNODC Module Series on Integrity and Ethics.

Risk management approaches to fighting corruption in the private sector

Even when they adopt anti-corruption measures, all organizations are still subject to corruption risks.
Ethics and compliance programmes should therefore include procedures for the identification and
treatment of corruption-related risks that could affect the performance of the organization (COSO,
2016). Risk management approaches have become an essential part of the corporate compliance
field. Overall, the corruption risk management is seen as a process of identifying and prioritizing
(assessing) the risks, in order to design a meaningful plan to address them, and then to implement the
plan, while monitoring the changing environment and being ready to have a flexible response to new
challenges.

Corruption risks vary. While there are external risk factors related, for example, to the country, industry
sector and type of operation, there are also internal risks that are organization-specific, such as
insufficient reporting channels, conflicting incentives, and a lack of policies and procedures. Corruption
risks differ from company to company according to their distinctive characteristics, such as size,
structure, geographical factors, business model or internal operations. The size of the company
matters particularly as it dictates how measures and strategies can be applied. Size is correlated
to resources, such as staff, time and money, that influence what kinds of anti-corruption ethics and
compliance programmes can be implemented (Sullivan and others, 2013). The limited availability of
resources, for example, makes risk assessments particularly difficult for small and medium-sized
enterprises (SMEs), which must strike a balance between cost-effectiveness and efficiently reducing
corruption risks. However, a lack of resources should not be a barrier to developing an ethical culture.

Corruption risk assessments are essential to ensure that resources are being applied where they most
matter and to reinforce transparency, build trust and reduce corruption. To prevent and fight corruption
effectively, the company needs to know how and where the crime happens. Such knowledge enables
the targeting of real and not just perceived problems within a given organization’s processes and
structures and, eventually, the identification and application of relevant measures aimed at resolving
these problems. Corruption risk assessments can be crucial because, while managers might
acknowledge the risk of corruption on a more general level, they might not know or realize the exact
mechanisms through which their company is exposed to corruption.

In recent years, several international organizations have developed tools and mechanisms to support
the private sector’s need to identify and respond to corruption risks. Such risk assessment tools have
been developed, for example, by the United Nations Global Compact21, the Committee of Sponsoring
Organizations of the Treadway Commission22 (COSO), the Regional Anti-Corruption Initiative23 (RAI)
and Transparency International24.

21 Available at https://www.unglobalcompact.org/library/411.
22 An executive summary of the Guide is available from the COSO website (www.coso.org).
23 Available at www.rai-see.org/wp-content/uploads/2015/10/CRA_in_public_ins_in_SEE-WEB_final.pdf
24 Available at www.antibriberyguidance.org/guidance/4-risk-assessment/guidance.

22
Private Sector Corruption

Module 5
While the above-mentioned guides differ in some aspects, such as terminology, steps of the process
and techniques for collecting and analysing data, most of them follow the standardized framework
for designing, implementing, and maintaining corruption risk management systems offered by the
International Standards Organization (ISO) in its ISO 31000 – Risk Management. This framework
suggests a standard approach to risk management, consisting of three main phases: risk identification;
risk analysis; and risk evaluation (ISO 31000, 2018). This approach is illustrated in the PowerPoint
slides available in the Additional teaching tools section of this Module.

Corruption risk assessments in companies should focus on both internal and external risks, including
organizational culture risk. Once specific corruption pathways are identified, it then becomes possible
to put in place additional controls and checks to prevent these acts from being perpetrated. To ensure
an effective and affordable compliance system, risk assessments must be conducted on a regular
basis, as well as when there is a significant change in the business of the company.

Business partner’s due diligence

To externalize business risks and for other reasons, companies sometimes outsource operations to
third parties such as agents, consultants, distributors, subcontractors, re-sellers, foreign subsidiaries,
business partners in joint ventures and, in general, anyone with the capacity to act on behalf of the
company or whose conduct can end up benefiting the company. However, working with third parties
presents significant corruption risks. For example, research from the OECD (2014) indicated that
75 per cent of all transnational bribery enforcement actions conducted between 1999 and 2014
involved payments through intermediaries. The practice of using intermediaries to channel bribes is
so extensive that the international community responded by tightening company responsibility by
requiring due diligence to be performed when dealing with third parties.

The duty to supervise the behaviour of third parties emerges from the principle that anyone who
creates a situation of risk or danger is obliged to adopt appropriate precautionary measures to serve
as protection against the occurrence of the harm. To address third party risks, companies first need
to map their third parties globally and understand the purpose of each commercial relationship. This
information allows companies to classify their third parties into a risk matrix and adopt appropriately
proportioned measures to mitigate the identified risks. In many cases, due diligence processes result
in a reduction in the number of business partners and in the rationalization of operations, often to the
benefit of the corporation.

Risk mitigation measures range from getting the business partners’ acknowledgment and commitment
to abide by the law and by the company’s code of conduct to establishing contractual safeguards,
including audit and termination rights, and carrying out third parties’ anti-bribery training. Part of the
due diligence process involves checking the reputation of potential business partners against different
databases, for example those containing sanctioned persons, blacklisted persons, politically exposed
persons (PEPs), and adverse media reports in local language. If the third party shows up in these lists,
then the company can undertake a more thorough investigation. For a discussion of the evolution of
third-party due diligence, see Transparency International UK (2016).

23
Private Sector Corruption

Module 5
As with employees, measures aimed at mitigating third party risks can take different shapes. Companies
may concentrate on avoiding working with business partners suspected of corruption. An approach
based on surveillance and sanctions will focus on the selection process of business partners and on
legal measures to protect the company if the third party subsequently violates the rules. By contrast, a
value-based approach aims at working with partners who share common values and at helping them
to create the right corporate culture to avoid corruption. This distinction is especially important in
contexts of systemic corruption, where local business partners are hired for a specific process, such
as customs clearance, and obtaining licences or permits, and may have little choice but to pay bribes
to deliver the goods and services to their clients. In a more coercive compliance relationship with large
companies, local agents might be inclined to hide their activities. In a more open relationship, local
agents can engage with large companies in a collective strategy to reduce corruption in that specific
business process.

Collective action and public-private partnerships against corruption

This Module has reviewed so far the implementation of a global regime based on the application of
a principal–agent relationship. In other words, the parent company (the principal) is responsible for
the acts of its subsidiaries, intermediaries and third parties (the agents). This strategy is useful in
reducing bribes in international business and in global supply chains. It considerably increases the
likelihood that multinational companies sanctioned for corruption in one country will forfeit business
opportunities in other countries, owing to blacklisting or ineligibility for public tenders.

However, this strategy may be insufficient when corruption is systemic, for example, because it has
spread and is deeply embedded in public–private networks, or because it is supported or even organized
by the government. Facing systemic corruption, companies may be left with no choice but to withdraw
from the specific market, with the unintended policy consequence of leaving the market in the hands
of less scrupulous players. Moreover, when corruption is widespread, a legal intervention based on
corporate liability may generate costly transitions. In Latin America, for example, the Odebrecht case25
involved hundreds of companies, many of which went bankrupt or are on the verge of bankruptcy.
In Brazil alone, over 100,000 workers lost their jobs. Avoiding these abrupt transitions – which often
promote setbacks that perpetuate corruption – requires a different strategy.

In markets with systemic corruption, companies face a “prisoner’s dilemma”26 in which they fear a
competitive disadvantage if they refuse to engage in corrupt practices, such as loss of contracts.
This has also been described as the “collective action problem”, discussed in further detail in Module
4 of the UNODC Module Series on Anti-Corruption. The prevailing sentiment is that if one company
does not bribe, the competitors will. In other situations, distrust is minimized through the formation of
cartels – sometimes even encouraged by the State. In both cases, the result is an exponential increase
in collective costs.

25 For more information about the Odebrecht case, see www.bbc.com/news/world-latin-america-41109132.

26 The prisoner’s dilemma is explained at https://policonomics.com/lp-game-theory2-prisoners-dilemma/.

24
Private Sector Corruption

Module 5
The answer to these problems requires an agreement, similar to a multiparty contract: an agreement
in which different stakeholders commit themselves to a new normative balance. For this approach
to work, most stakeholders must have the expectation that their peers will abide by and make others
comply with these new rules.

These collective and coordinated approaches are often called “collective action” initiatives, and have
been defined as follows (World Bank, 2008, p. 4):

“Collective action” is a collaborative and sustained process of cooperation between stakeholders.

It increases the impact and credibility of individual action, brings vulnerable individual players
into an alliance of like-minded organizations and levels the playing field between competitors.
Collective action can complement or temporarily substitute for and strengthen weak local laws
and anti-corruption practices.

Collective action initiatives can take on various forms, ranging from short-term agreements to long-term
initiatives with external enforcement. Companies that participate in such initiatives can pursue their
common objectives much more effectively in a joint and concentrated effort than they can individually.
Collective action initiatives can be formed either in the private sector alone (e.g. SMEs requesting
harmonized supplier standards from larger companies) or involve public–private partnerships (e.g.
collectively addressing single challenges such as facilitation payments, or advocating for an improved
regulatory and business environment). An example of the former type of collective action approach
is the Jornada Íntegra27 initiative, which was launched in 2019 in Brazil by the international business
platform Alliance for Integrity. This initiative aims to support Brazilian small and medium-sized
enterprises (SMEs) in creating more ethical and sustainable business environment.

Nowadays, companies are increasingly adopting anti-corruption approaches in collaboration with the
public sector and civil society as well as academia. These collective approaches have great potential
to reduce corruption in society in the broadest sense, for several reasons. First, corruption is so
complex that it cannot be solved by either governments or companies acting alone. Thus, while the
private sector is part of the problem, it is also part of the solution to fighting corruption in society.
Secondly, while companies are a common source of corrupt funds, they are also victims of corruption
and thus have a shared stake in reform. Thirdly, governments can benefit from the expertise and
resources that ethical businesses are able to bring to the fight against corruption. With collective
action, companies of all sizes can become meaningful agents of change in relation to anti-corruption
policies and procedures, stimulating efforts in the private and public sectors to decrease corruption
and engage in effective reform.

Collective action can involve private as well as government actors – a collaboration referred to as a
public-private partnership. A recent example of collective action based on a public-private partnership
is the intervention led by the Maritime Anti-Corruption Network (MACN) in Argentina28 along with
several business associations that operate in the maritime transport sector.

27 For more information, see www.allianceforintegrity.org/pt/eventos-e-atividades-de-capacitacao/eventos/

Jornada-Integra.php.
28 For more information, see https://macn.dk/macn-argentina-collective-action-case-study/.

25
Private Sector Corruption

Module 5
The intervention aimed to reduce corruption during inspections of the holds and tanks of the bulk carriers
conducted by the National Service of Health and Agri-Food Quality in Argentina. The inspections were
supposed to ensure that the means of transport were in adequate condition to avoid contamination of
agricultural products. However, an illicit business worth about $30 million per year developed because
of a combination of factors, namely: the unsupervised discretion enjoyed by the inspectors, the costs
derived from the delays caused by the disapproval of the warehouse, and the lack of transparency
and regulation of the entire inspection process. These conditions facilitated bribery, paid by ships in
poor condition to obtain the undue benefit of approval, and commercial extortion of vessels in good
condition that paid to avoid costly and unjustified delays. Over time, the extent of systemic corruption
in these inspections affected not only individual companies who had to add bribery to their business
costs, but international trade in Argentinian agricultural products more broadly, to the extent that the
higher costs and legal risks discouraged foreign companies from trading in the country.

To address this case of corruption, MACN members engaged with all stakeholders, including the
government, in a process that took more than three years to re-design the investigation process. The
discussions evaluated the commercial, legal and financial advantages and disadvantages faced by
each stakeholder and how a level-playing field would affect them. In agreement with all stakeholders,
the Government reformed the regulatory framework in November 2017. The collective action continued
during the implementation of the reform, through meetings with all stakeholders and training of
operative personnel, both in the public and private sector. Bribes decreased to almost zero, and in the
few instances where corruption occurred, the incidents were reported and sanctioned.

Interesting discussions and examples of collective action approaches are included in a B20 paper29
from 2014, which proposes ways to enhance the private sector’s role in the fight against corruption,
including by improving its collaboration with governments and international institutions. The paper
contains many useful case-studies that illustrate different approaches to achieving such collaboration.

Further information on collective action and public-private partnerships is available in the UNODC
An Anti-Corruption Ethics and Compliance Programme for Business: A Practical Guide. The Basel
Institute of Governance maintains a database30 of collective action initiatives against corruption. The
above mentioned United Nations Global Compact, Alliance for Integrity, PACI and B20 are other well-
known examples of global collective actions initiatives.

Conclusion
This Module has discussed the various forms and manifestations of corruption within the private
sector in order to help the students better understand the differences between public and private
sector corruption, the causes and consequences of private sector corruption as well as the role of
the private sector in the fight against corruption. The Module has also introduced different measures
and tools to prevent and respond to private sector corruption, particularly emphasizing collective
action projects, compliance programmes and value-based approaches to change companies’ ethics
and behaviour. Through the different examples and class exercises, the Module also helps students
develop an understanding of the importance of ethical and fair business environment.

29 Availableat www.aodv231.it/images/image/Allegato 1 -Preliminary_Study_v_2 1.pdf.

30 Available at https://baselgovernance.org/b20-collective-action-hub.

26
Private Sector Corruption

Module 5
References
Acorn, Elizabeth (2016). The Power of Procurement in the Fight against Foreign Bribery. Paper
presented at the 2016 OECD Integrity Forum. Paris, March.

Alliance for Integrity (2016). No eXcuses! Countering the 10 Most Common Excuses for Corrupt
Behaviour: A Pocket Guide for Business Practitioners.
» Available from www.allianceforintegrity.org/wAssets/docs/publications/ en/behavioural-
compliance/GH-No-eXcuses-Pocket-Guide.pdf.

Argandoña, Antonio (2003). Private-to-private Corruption. Journal of Business Ethics, vol. 47, issue 3
(October), pp. 253-67.

Ariely, Dan (2013). The Honest Truth about Dishonesty. Harper Collins.

Athanasouli, Daphne, and Antoian Goujard (2015). Corruption and management practices: Firm level
evidence. In Journal of Comparative Economics, vol. 43, issue 4 (November), pp. 825-1150. Elsevier
Inc.

Bai, Jie, and others (2017). Firm Growth and Corruption: Empirical Evidence from Vietnam. The
Economic Journal, vol. 129, issue 618, pp. 651–677.
» Available from https://dukespace.lib.duke.edu/dspace/bitstream/handle/1016 1/17747/BJMO_
EJ_2017.pdf?sequence=2&isAllowed=y.

Becker, Gary S. (1968). Crime and Punishment: An Economic Approach. Journal of Political Economy,
vol. 76, no. 2 (April), pp. 169–217.

Boles, Jeffrey (2014). The Two Faces of Bribery: International Corruption Pathways Meet Conflicting
Legislative Regimes. Michigan Journal of International Law, vol 35, issue 4, pp. 674-713.
» Available from https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1 067&context=mjil.

Buell, Samuel W. (2018). The Responsibility Gap in Corporate Crime. Criminal Law and Philosophy, vol.
12, issue 3 (September), pp. 471-91.
» Available from https://scholarship.law.duke.edu/faculty_scholarship/3748/.

Committee of Sponsoring Organizations of the Treadway Commission (COSO) (2016). Fraud Risk
Management Guide.

Fisman, Raymond, and Jakob Svensson (2007). Are Corruption and Taxation Really Harmful to Growth?
Firm-Level Evidence. Journal of Development Economics, vol. 83, issue 1 (May), pp. 63-75.

Forgues-Puccio, Gonzalo (2013). Corruption and the Private Sector: A review of issues. EPS-PEAKS.
» Available from www.businessenvironment.org/dyn/be/docs/262/corruption_and_the_private_
sector_eps_peaks_2013.pdf.

27
Private Sector Corruption

Module 5
Gopinath, C. (2008). Recognizing and Justifying Private Corruption. Journal of Business Ethics, vol. 82,
issue 3 (October), pp. 747–754.

Hanousek, Jan, and Anna Kochanova (2015). Bribery environment and firm performance: Evidence
from Central and Eastern European Countries. CEPR Discussion Papers, no. 10499. London: Center
for Economic Policy Research.

Hodges, Christopher, and Ruth Steinholtz (2017). Ethical Business Practice and Regulation: A
Behavioural and Values-based Approach to Compliance and Enforcement. Oxford: Hart Publishing.

International Organization for Standardization (ISO) (2018). ISO 3100 Risk Management. Geneva.

Jenkins, Matthew (2017). The relationship between business integrity and commercial success.
Bergen, Norway: U4 Anti-Corruption Resource Centre, Chr. Michelsen Institute.
» Available from www.u4.no/publications/the-relationship-between-business-integrity-and-
commercial-success.pdf.

Johannsen, Lars, and others (2016). Private-to-Private Corruption: A survey on Danish and Estonian
business environment. Aarhus University, Tartu University, and the Ministry of Justice of Estonia.
» Available from https://pure.au.dk/portal/files/96570374/Johannsen_Pederse n_Vadi_Reino_S_t_
private_to_private_corruption_2016.pdf.

Langevoort, Donald C. (2017). Cultures of Compliance. Georgetown Law Faculty Publications and
Other Works, no. 1799. Georgetown University.
» Available from https://scholarship.law.georgetown.edu/facpub/1799.

Lee-Jones, Krista (2018). Regulating Private Sector Corruption. Berlin: Transparency International.
» Available from https://knowledgehub.transparency.org/assets/uploads/helpde sk/Regulating-
private-to-private-corruption_2018.pdf.

Martini, Marie, and Dieter Zinnbauer (2014). Regulating Private-to-Private Corruption. Berlin:
Transparency International.
» Available from www.transparency.org/files/content/corruptionqas/Reg ulating_private_to_
private_corruption_2014.pdf.

Organisation for Economic Co-operation and Development (OECD) (2014). OECD Foreign Bribery
Report: An Analysis of the Crime of Bribery of Foreign Public Officials. Paris.
» Available from www.oecd.org/corruption/oecd-foreign-bribery-report-9789264226616-en.htm.

Organisation for Economic Co-operation and Development (OECD) (2016). The Liability of Legal
Persons for Foreign Bribery. OECD, a Stocktaking Report.
» Available from www.oecd.org/daf/anti-bribery/Liability-Legal-Persons-Foreign-Bribery-
Stocktaking.pdf.

28
Private Sector Corruption

Module 5
Organisation for Economic Co-operation and Development (OECD), United Nations Office on Drugs
and Crime (UNODC), and World Bank (2013). Anti-Corruption Ethics and Compliance Handbook for
Business. Paris, Washington, and Vienna.
» Available from www.unodc.org/documents/corruption/Publications/201 3/Anti-CorruptionEthi
csComplianceHandbook.pdf.

Pakstaitis, Laurynas (2019). Private Sector Corruption: Realities, Difficulties of Comprehension, Causes
and Perspectives. The Lithuanian Approach. Crime, Law and Social Change, pp. 1-21.

Persson, Anna, Bo Rothstein, and Jan Teorell (2013). Why Anti-Corruption Reforms Fail - Systemic
Corruption as a Collective Action Problem. Governance, vol. 26, issue 3, pp. 449-471.

PricewaterhouseCoopers (2018). Global Economic Crime and Fraud Survey.

» Available from www.pwc.com/gx/en/services/advisory/forensics/economic-crime-survey.html.

Risk Advisory (2019). Corruption Challenges Index 2019.

» Available from www.riskadvisory.com/campaigns/corruption-challenges-index-2019-reveal/.

Rose-Ackerman, Susan (2007). Measuring Private Sector Corruption. Bergen, Norway: U4 Anti-
Corruption Resource Centre, Chr. Michelsen Institute.
» Available from www.u4.no/publications/measuring-private-sector-corruption/.

Sööt, Mari-Liis, and others (2016). Private-to-private corruption: Taking business managers’ risk
assessment seriously when choosing anti-corruption measures. 2016 OECD Integrity Forum. Paris.

Sullivan, John D., Andrew Wilson, and Anna Nadgrodkiewicz (2013). The role of corporate governance
in fighting corruption. Deloitte.
» Available from https://www2.deloitte.com/content/dam/Deloitte/ru/Documents/finance/role_
corporate_governance_sullivan_eng.pdf.

Taylor, Alison (2016). What Do Corrupt Firms Have in Common? Red Flags of Corruption in Organizational
Culture. Center for the Advancement of Public Integrity, Columbia Law School.
» Available from: https://web.law.columbia.edu/sites/default/files/microsites/publ ic-integrity/
files/what_do_corrupt_firms_have_in_common_-_capi_issue_brief _-_april_2016.pdf.

The World Bank Office of Suspension and Debarment (2015). Report on Functions, Data and Lessons
Learned. Washington, DC: The World Bank.
Available from www.worldbank.org/content/dam/documents/sanctions/office-of-suspension-and-
debarment/2019/may/OSDReport.pdf.

Torsello, Davide (2018). Organizational Culture and Corruption. In: Deborah Poff and Alex Michalos,
eds. Encyclopedia of Business and Professional Ethics, Springer.

Transparency International (2013). Business Principles for Countering Bribery. Berlin.

» Available from www.transparency.org/whatwedo/publication/business_principles_for_
countering_bribery.

29
Private Sector Corruption

Module 5
Transparency International UK (2016). Managing Third Party Risk: Only as Strong as Your Weakest
Link. London.
» Available from www.transparency.org.uk/publications/managing-third-party-risk-only-as-strong-
as-your-weakest-link/.

Treviño, Linda K., Gary R. Weaver, and Scott J. Reynolds (2006). Behavioural Ethics in Organizations: A
Review. Journal of Management, vol. 32, issue 6 (December), pp. 951–990.

United Nations Office on Drugs and Crime (UNODC) (2013a). The United Nations Convention against
Corruption: A Resource Guide on State Measures for Strengthening Corporate Integrity. Vienna.
» Available from www.unodc.org/documents/corruption/Publications/2013/Resource_Guide_
on_State_Measures_for_Strengthening_Corporate_Integrity.pdf.

United Nations Office on Drugs and Crime (UNODC) (2015). Resource Guide on Good Practices in the
Protection of Reporting Persons. Vienna.
» Available from www.unodc.org/documents/corruption/Publications/2015/15-04741_Person_
Guide_eBook.pdf.

World Bank Institute (2008). Fighting Corruption through Collective Action: A Guide for Business.
Washington, DC.
» Available from www.globalcompact.de/wAssets/docs/Korruptionsprae vention/Publikationen/
fighting_corruption_through_collective_action.pdf.

30
Private Sector Corruption

Module 5
Exercises
This section contains suggestions for pre-class and in-class educational exercises, while a post-class
assignment for assessing student understanding of the Module is suggested in a separate section.

The in-class exercises in this section are most appropriate for classes of up to 50 students, where
students can easily be organized into small groups in which they discuss cases or conduct activities,
after which group representatives provide feedback to the entire class. Although it is possible to
create the same small group structure in large classes comprising a few hundred students, it will be
more challenging, and the lecturer may need to adapt facilitation techniques to ensure sufficient time
for group discussions and for providing feedback to the entire class. The easiest way to deal with
the requirement for small group discussions in a large class is to ask students to discuss the issues
with the four or five students sitting closest to them. Given the time limitations, not all groups will be
able to provide feedback during each exercise. It is recommended that the lecturer makes random
selections and tries to ensure that all groups have the opportunity to provide feedback at least once
during the session. If time permits, the lecturer can facilitate a discussion in plenary after each group
has provided feedback.

All exercises in this section are appropriate for both graduate and undergraduate students. However, as
students’ prior knowledge and exposure to these issues vary widely, decisions about appropriateness
of exercises should be based on their educational and social context. The lecturer is encouraged to
relate and connect each exercise to the Key issues of the Module.

It is recommended that lecturers begin building a conducive and friendly environment at the start of
class and before conducting the very first exercise. This can be done by breaking the ice in a supportive
way, by respectfully examining students’ starting orientations to corruption, and by demonstrating
genuine interest in their perspectives. Once students come to see the lecturer as respectful, genuinely
interested in their orientation to the material, and consistent in policing any snide or unsupportive
comments by class members, that safe space will enable effective learning and development.

Pre-class exercise 1: What do we know about business integrity?

This pre-class exercise could be completed as part of the class preparation process. Before attending
the class, ask students to complete one or more of the six interactive learning modules from the
e-learning tool “The Fight against Corruption”31.

The modules, which are freely available online in over 30 languages, explore some of the ethical
dilemmas that are typical in the business world. Some of the issues raised therein are also covered
in the present Module 5, such as a company’s gift policy. During the class, the lecturer could refer to
the videos when discussing certain issues. In addition, the lecturer could start the class by raising
questions about the ethical dilemmas reflected in the videos.

31 Available at https://thefightagainstcorruption.org/.

31
Private Sector Corruption

Module 5
Lecturer guidelines

This e-learning tool is a joint product of UNODC and the UNGC. It uses six interactive learning modules
to further the audience’s understanding of the UNGC 10th principle32 against corruption and the
UNCAC as they apply to the private sector. The tool targets private sector actors and can also be
useful for students taking the present Module. Each video only lasts about five minutes, providing a
quick and effective way of learning about business integrity. Students who complete all six modules
will receive a computer-generated certificate, which could be an incentive that increases their interest
in the learning tool.

Pre-class exercise 2: Case studies

Ask the students to spend one to three hours (depending on the reading assignment) doing research
about corruption cases in a specific industry sector (e.g. pharmaceutical, shipping, construction). The
lecturer should provide questions to guide students’ thinking while reading, such as: Who were the
victims in these cases? Which factors do you think led to corruption? What are the negative impacts
on the company and on society?

Examples of useful materials are:

Pharmaceutical industry:
• GlaxoSmithKline case33
• Optimer Pharmaceuticals case34
• China fines local pharma for bribing former hospital president35

Construction industry:
• Why is the corruption industry so vulnerable to corruption?36
• Corruption in the construction of public infrastructure: Critical issues in project preparation37
• OECD Integrity Framework for Public Infrastructure38

➢ Lecturer guidelines:
The research by the students will reveal resources that will be useful as background materials for
the in-class exercises and discussions, as well as for the post-class assessment assignments. The
lecturer could also provide information regarding corruption scandals that have taken place in the
students’ country or region.

32 For more information, see www.unglobalcompact.org/what-is-gc/mission/principles/principle-10.

33 Available at www.fcpablog.com/blog/2013/7/27/more-arrests-confessions-reported-in-china-pharma-scandal.
html.
34 Availableatwww.fcpablog.com/blog/2013/3/19/at-optimer-pharmaceuticals-fcpa-and-conflict-problems-topple.html.

35Available at www.fcpablog.com/blog/2016/4/22/china-fines-local-pharma-for-bribing-former-hospital-preside.html.

36 Available at www.fcpablog.com/blog/2018/5/9/spinelli-and-pilosio-why-is-the-construction-industry-so-vul.html.

37 Available at www.u4.no/publications/corruption-in-the-construction-of-public-infrastructure-critical-issues-in-
project-preparation-1.
38 Available at www.oecd.org/corruption/ethics/Integrity-Framework-For-Public-Infrastructure-Brochure.pdf.

32
Private Sector Corruption

Module 5
Exercise 1: Is there a difference between public and private corruption?
Lecturer guidelines
The lecturer asks students to compare the following case scenarios:
Scenario 1: A Congressman serves on a legislative committee that is choosing the site of a new public
building. A company owns property adjacent to one of the sites that the committee is considering. The
CEO of the company offers US$20,000 to the Congressman in return for a favourable vote for the site.
The Congressman accepts the offer.

Scenario 2: A board member of a private corporation currently serves on a committee that will choose
the site of a new office building. Another company owns property adjacent to one of the sites that the
committee is considering. The CEO of the other company offers the board member US$20,000 for a
favourable vote. The board member of the private corporation accepts.

Lecturer guidelines:

The lecturer can facilitate a discussion on, and a comparison between, these two scenarios. The
lecturer may, for example, ask: Who are the persons negatively affected in each case? Is one scenario
worse than the other? If so, why? Should the conduct in both cases be treated as a crime? How
severely, if at all, should the wrongdoers be punished? Does the law in your country criminalize both
behaviours? If so, how?

Exercise 2: Assessing risks and developing mitigating measuresLecturer

guidelines
Divide the class into small groups - a maximum of five students per group encourages participation.
Based on the scenarios below, provide each group with a different business setting, for example the
biggest local construction group; a multinational pharmaceutical; or a regional shipping company.
Ask each group to identify the specific risks in that sector and to discuss appropriate measures to
mitigate the risks. The aim of this exercise is to assess the risks to which various business models are
exposed, and to think about mitigating measures for each one.

Lecturer guidelines:

The lecturer prints out the information provided below about four case scenarios and assigns
one scenario to each group. If possible, allow students to briefly review and choose the scenario
to be analysed, explaining why that scenario is the most interesting. After each group presents its
conclusions, the lecturer facilitates a discussion and integrates contributions by all groups. Students
are then given 30 minutes to:
a) identify the risks; and
b) come up with mitigating measures. A member of each group is given the opportunity to share
the conclusions with the whole class. Thereafter the lecturer emphasizes how different business
models and corporate culture traits lead to different compliance solutions.

The case scenarios provided below may be printed out for the students. The lecturer may wish to
consider or develop alternative scenarios that are more relevant to students’ regional, local and
cultural contexts.

33
Private Sector Corruption

Module 5
Case scenario for Group 1: XAQUIRI LTD

XAQUIRI LTD is a publicly traded multinational pharmaceutical company. With more than 1,000
employees, XAQUIRI has developed a successful business model in the last 20 years, becoming
a leading company in four countries. The board of directors is now discussing the possibility of
extending its operations to other countries. A market study prepared by a consultant revealed that
multinational pharmaceutical companies do not sell their products directly. Instead, they contract
local distributors, which interact with local doctors. All professionals working in the public and private
health system prescribe medication based on their professional knowledge and guided by ethical
principles. Distributors often offer incentives to those who prescribe their products. Incentives vary
from training courses, invitations to conferences, hiring health professionals as consultants and, in
some countries, cash payments. Even though distributors are not company employees, corporate
liability rules make companies liable for the conduct of all its business partners, locally and overseas.

Imagine that you are a member of XAQUIRI’s compliance team. Identify the potential corruption risks
and develop measures to mitigate them.

Case scenario for Group 2: KABAKA INC.

KABAKA INC. is a leading construction company with more than 50,000 employees. In the last 30
years, KABAKA INC. was involved in the most important public construction projects in country A.
The commercial success was achieved by the business skills of the Kabaka family, whose members
founded the company and are the only shareholders and members of the board.

KABAKA INC. has, however, grown in an environment of systemic corruption. A huge and complex
cartelization system has ruled the public construction projects in the country for some decades, which
has been tolerated and, in some cases, encouraged by the different political parties, in exchange for
money and favours. Furthermore, improper payments to labour union leaders represent an important
cost in the construction industry. It is publicly known that companies pay up to ten per cent of the
cost of each project to the leader of the construction workers’ labour union to avoid strikes and meet
deadlines.

Encouraged by international conventions and following a regional trend, the recently elected Government
of country A has tabled a bill establishing criminal corporate liability for public and commercial bribery.
The bill requires companies to have an effective anti-corruption ethics and compliance programme as
a requisite to sign public contracts. As a result, KABAKA INC. can only apply for new public tenders
once its anti-corruption ethics and compliance programme is up and running.

KABAKA INC. decides to hire you as a consultant to identify the risks and develop measures to mitigate
them. Draw up a report for your employer.

34
Private Sector Corruption

Module 5
Case scenario for Group 3: DIOGENES LTD

DIOGENES LTD is a maritime shipping company based in country B. The recently designated CEO is
an experienced businesswoman who has worked in the shipping sector for 20 years. She wants the
company to expand to new markets, but also to tackle some longstanding problems.

According to the CEO, it is common practice in many ports of the world for local inspectors to demand
favours in return for speeding up the loading and unloading of cargo. This is not a minor issue because
time spent by ships in port is expensive for DIOGENES LTD. Local inspectors usually demand all kinds
of favours from the captains of ships, which in many cases include small facilitation payments like
imported cigarettes, bottles of whisky or cash payments, to speed up the procedures. Different actors
take part in the port inspections, such as ship captains, local inspectors and public officials.

DIOGENES LTD also interacts with state-owned and private companies, for example, when buying new
ships or contracting maintenance work.

In this scenario, the board agrees with the CEO’s plan to try and expand into new markets, but also
to try to reduce corruption risks, avoid unnecessary costs for bribes, and adhere to legislation by
implementing an effective anti-corruption ethics and compliance programme. Imagine that you are a
member of the board of directors during a board meeting. Share your evaluation of the situation and
your suggestions about how to proceed.

Exercise 3: The consultantdelines

This exercise involves role playing in an imaginary board meeting setting. In small groups, students
set about working on a dilemma where they analyse and decide on a risky business opportunity after
detecting several red flags. During these discussions, students will be able to experience the inherent
tension between risky business opportunities, and ethics and legal compliance. Students will also
have to take into account the complexity of transnational business transactions and the implications
of third-party due diligence.

Lecturer guidelines:

The lecturer should print out the exercise before class and hand a copy to each group of students.
Remember: A maximum of five students per group encourages participation. Each group is given 30
minutes to read and discuss the case. After the discussion, the lecturer asks each group to upload or
share a brief, written summary of their analysis and decisions, and then invites a representative from
each group to present the group’s conclusions to the whole class. Before the full-group discussion, the
lecturer can ask students to do a confidential vote on whether they would hire the consultant or not.

The lecturer, or a separate group of students, can devise a chart, shared on the board or online, to
track the points observed by the groups. After the full-group discussion, the students return to their
small groups and discuss their original position and whether and why it has changed. The lecturer may
conclude this exercise with discussions about what students think the stronger decision is and why.

35
Private Sector Corruption

Module 5
The following text should be printed and handed out:

Case Scenario: The consultant

You are members of the board of a multinational construction company headquartered in country C.
The company trades its shares at the New York Stock Exchange and is therefore subject to the Foreign
Corrupt Practices Act of 1977 (FCPA). Your company was sanctioned for FCPA violations in 2015,
but has since implemented strict ethics and compliance measures. Your company is active in many
countries. The subsidiary in country D is about to bid for what may be the biggest contract in the region
since 2010. The local CEO requests approval from the board to hire a consultant who seems key to
winning the contract. The board has just received the following email from the compliance officer
responsible for the region:

Dear Board Members

As you know, our local subsidiary is about to bid for the tender of the Ministry of Transport for the
construction of a highway in country D. In addition to the construction contract, the winner will operate
the highway tolls for ten years. According to a market study, this appears to be a profitable business
opportunity extending over many years. At this stage of the bidding process, our company and a joint
venture that includes another local company are shortlisted. This morning, our local CEO requested
my authorization to hire a consultant that can help us obtain the contract. The consultant is a qualified
engineer with significant expertise in the field. The consultant requests a fee of three per cent of the
first gross instalment of the contract, on a contingency basis, amounting to about US$1.5 million. The
price is at the higher end for global consulting fees and certainly above the average of local fees. The
consultant’s services consist of representing us at the scheduled public hearing, which will take place
this coming Friday. The hearing will be closely covered by the press and we expect the attendance
of important stakeholders. The local CEO believes that the consultant can be key to our success.
Our local compliance officer has checked the consultant’s background against standard databases
and found nothing suspicious. There are no pending court cases and, while there were some media
articles about the consultant’s influence over decision makers in infrastructure contracts, our local
CEO explained that all of them come from a newspaper controlled by the opposition party that takes
every opportunity available to create suspicions of corruption within the current administration. No
concrete evidence has been published.

After the conversation with the local CEO, we are inclined to give approval to hire the consultant. The
local CEO shares our view but has also suggested that the consultant might be offering services to
the competing joint venture as well. Our company policy requires the approval of the Board for this
decision. How should we proceed? We would appreciate your reply as soon as possible.

Best regards,

Compliance Officer X

36
Private Sector Corruption

Module 5
Exercise 4: Anti-corruption ethics and compliance programmes
The following model from the United Nations Global Compact shows six steps to an effective anti-
corruption ethics and compliance programme:

Step 1: Leadership commits to During this step, company leadership

Commit prioritizing the Global Compact publicly signals its commitment to
principles in strategies and stakeholders. Leadership specifically
operations and to taking action commits to supporting the Global
in support of broader United Compact and making its 10 principles
Nations goals, in a transparent part of the strategy, culture and day-
way. to-day operations of the company,
with oversight provided by transparent
governance structures.
Step 2: Leadership undertakes to Equipped with a commitment to the
Assess assess risks, opportunities and Global Compact and in support of United
impacts across Global Compact Nations goals, the company assesses
issue areas. its risks and opportunities – in financial
and extra-financial terms – as well as the
impact of its operations and activities, on
an ongoing basis in order to develop and
refine its goals, strategies and policies.
Step 3: Leadership aims to define goals, Based on its assessment of risks,
Define strategies and policies. opportunities and impacts, the company
develops and refines goals and metrics
specific to its operating context, and
creates a roadmap to carry out its
programme.

Step 4: Leadership undertakes to The company establishes and ensures

Implement implement strategies and ongoing adjustments to core processes,
policies throughout the engages and educates employees, builds
company and across the capacity and resources, and works with
company’s value chain. supply chain partners to address and
implement its strategy.

Step 5: Leadership plans to measure The company adjusts its performance

Measure and monitor impacts and management systems to capture,
progress toward goals. analyse, and monitor the performance
metrics established in the Assess and
Define steps. Progress is monitored
against goals, and adjustments are made
to improve performance.

Step 6: Leadership pledges to The company communicates its

Communicate communicate progress and progress and forward-looking strategies
strategies, and to engage for implementing its commitment
with stakeholders to strive for by developing a communication on
continuous improvement. progress, and engages with stakeholders
to identify ways to improve performance
continuously.

(Source: United Nations Global Compact)

37
Private Sector Corruption

Module 5
Ask your students to reflect critically on this model and explain its strengths and weaknesses.

Lecturer guidelines:

If the time allows it, the lecturer may split the class into groups and ask each group to identify existing
national and international guidelines on anti-corruption ethics and compliance programmes or to
assign some of the following examples from Argentina39, Brazil40, Japan41, New Zealand42, Spain43,
United Kingdom44, USA or the International Chamber of Commerce45. Then, each group should analyse
whether these guidelines follow the steps, described by UNGC, and discuss their findings with the rest
of the class.

Exercise 5: Collective action role play

This exercise is designed so that students express themselves through role playing. The students
should be given time to research a selected case study and understand their roles, before they begin
to develop the requested documents.

Lecturer guidelines:

The lecturer should select a relevant case study and print it out before class. The lecturer may use the
Maritime Anti-Corruption Network (MACN)46 case study described in the Key issues section, which
involved several business associations that operate in the maritime transport sector in Argentina,
or one of the case studies in the B20 paper47 from 2014. The lecturer may wish to use or develop
alternative case studies that are more relevant to students’ regional, local and cultural contexts.

The lecturer should divide the students into small groups, and hand a copy of the case study to each
group. Remember: A maximum of five students per group encourages participation. Provide each
group with a different role, for instance maritime inspectors, company executives accused of criminal
practices, members of a competitor company, customers, government officials. Each group will have
15 minutes to read and prepare the case. After that, the lecturer will ask each group to play a role in
the negotiations. The discussions should consider the commercial, legal and financial advantages
and disadvantages faced by each stakeholder; how to create a level playing field; and how this would
affect different actors. Participants should try hard to reach an agreement, because if all stakeholders
agree, the government will reform the regulatory framework.

39 Available at www.argentina.gob.ar/sites/default/files/resumen_para_prensa_-_lineamientos_de_integridad.pdf.
40 Available at www.gov.br/cgu/pt-br/centrais-de-conteudo/publicacoes/integridade/arquivos/programa-de-
integridad.pdf.
41 Available at www.meti.go.jp/policy/external_economy/zouwai/pdf Guidelinesfor the Prevention of Bribery of Foreign Public
Officials.pdf.
42 Available at www.justice.govt.nz/assets/Documents/Publications/Ministry-of-Justice-Anti-Corruption-Guide.pdf.

43 Available at www.justice.gov.uk/downloads/legislation/bribery-act-2010-guidance.pdf
44 Available at www.justice.gov/criminal-fraud/page/file/937501/download.
45 Available at https://iccwbo.org/global-issues-trends/responsible-business/combatting-corruption/.
46 See note 36.
47 See note 37.
38
Private Sector Corruption

Module 5
Possible class structure
This section contains recommendations for a teaching sequence and timing intended to achieve
learning outcomes through a three-hour class. The lecturer may wish to disregard or shorten some of
the segments below in order to give more time to other elements, including introduction, icebreakers,
conclusion or short breaks. The structure could also be adapted for shorter or longer classes, given
that the class durations vary across countries.

Introduction (10 min)

• Discuss the objectives, learning outcomes and teaching methodology of the class.

Overview of private sector corruption (60 minutes)

• Describe the differences between public and private sector corruption as well as the forms,
manifestations and causes of private sector corruption.

• Discuss with the students why is important to fight private sector corruption and emphasize on its
consequences for the business environment. The lecturer is encouraged to use interactive methods
such as Q&A and short presentations.
• Conduct Exercise 1.

How to address private sector corruption? (50 minutes)

• Present the various means to respond to private sector corruption such as corporate liability,
suspension and debarment, etc.
• Discuss the shift from legal to behavioural approaches to address private sector corruption and
provide an overview of different preventive approaches including ethics and compliance programmes,
risk assessment methods and business partners due diligence.

• Conduct Exercise 2, 3 or 4 (if time allows, the lecturer may wish to conduct more than one exercise
during this part of the class)

Collective action and public-private partnerships (50 minutes)

• Discuss the need of collective actions to fight corruption and provide the students with practical
examples of collective action initiatives of companies in different sectors and countries.

• Conduct Exercise 5.

Conclusion (10 minutes)

• Wrap up the main ideas which emanated from the Module, send the students home with a question
to continue thinking about. An example is: What are the most destructive aspects of private sector
corruption in your country or region, and what is the best way to deal with them?

39
Private Sector Corruption

Module 5
Core reading
This section provides a list of (mostly) open access materials that the lecturer could ask the students
to read before taking a class based on this Module.

Langevoort, Donald C. (2017). Cultures of Compliance. Georgetown Law Faculty Publications and
Other Works. Georgetown University.
» Available from http://scholarship.law.georgetown.edu/facpub/1799.

Pieth, Mark (2012). Collective Action and Corruption. Working Paper Series, No 13. Basel:
International Centre for Collective Action, Basel Institute of Governance.
» Available from www.collective-action.com/sites/collective.localhost/files/publications/120915_
wp_13_collective_action_and_corruption_pieth_final.pdf.

Sartor, Michael, and Paul Beamish (2019). Private Sector Corruption, Public Sector Corruption and the
Organizational Structure of Foreign Subsidiaries. Journal of Business Ethics, pp. 1-20.
» Available from: https://link.springer.com/content/pdf/10.1007%2Fs10551-019-04148-1.pdf.

Taylor, Alison (2016). What Do Corrupt Firms Have in Common? Red Flags of Corruption in
Organizational Culture. Center for the Advancement of Public Integrity, Columbia Law School.
» Available from https://web.law.columbia.edu/sites/default/files/microsites/publ ic-integrity/
files/what_do_corrupt_firms_have_in_common_-_capi_issue_brief _-_april_2016.pdf.

United Nations Office on Drugs and Crime (UNODC) (2013). An Anti-Corruption Ethics and
Compliance Programme for Businesses: A Practical Guide. Vienna.
» Available from www.unodc.org/documents/corruption/Publications/2013/13-84498_Ebook.pdf.

United Nations Office on Drugs and Crime (UNODC) (2013). Resource Guide on State Measures for
Strengthening Corporate Integrity. Vienna.
» Available from www.unodc.org/documents/corruption/Publications/2013/Resource_Guide_on_
State_Measures_for_Strengthening_Corporate_Integrity.pdf.

40
Private Sector Corruption

Module 5
Advanced reading

The following readings are recommended for students interested in exploring the topics of this Module
in more detail, and for lecturers teaching the Module:

Alderman, Richard (2014). Development of a Preliminary Study on Possible Regulatory Developments

to Enhance the Private Sector Role in the Fight against Corruption in a Global Business Context. Report
of the B20 Task Force on Improving Transparency and Anti-Corruption, 8 January 2014.
» Available from www.aodv231.it/images/image/Allegato%201%20-Preliminary_Study_v_2%201.
pdf.

Arlen, Jennifer (2012). Corporate Criminal Liability: Theory and Evidence. In Research Handbook on
the Economics of Criminal Law, A. Harel and K. Hylton, eds. Edward Elgar.

Arlen, Jennifer, and Reinier Kraakman (2012). Controlling Corporate Misconduct: An Analysis of
Corporate Liability Regimes. NYU Law Review, vol. 72, no, 1 pp. 687-779.

Ayres, Ian, and John Braithwaite (1992). Responsive Regulation: Transcending the Deregulation
Debate. New York: Oxford University Press.
» Available from http://johnbraithwaite.com/wp-content/uploads/2016/06/Respo nsive
-Regulation-Transce.pdf.

Buell, Samuel W. (2018). The Responsibility Gap in Corporate Crime. Criminal Law and Philosophy, vol.
12, issue 3 (September), pp. 471-91.

Campos, Nauro, Saul Estrin, and Eugenio Proto (2010). Corruption as a Barrier to Entry: Theory and
Evidence. IZA Discussion Paper Series, No. 5243. Institute for the Study of Labor.
» Available from https://ideas.repec.org/p/iza/izadps/dp5243.html.

Field, Alan (2017). ISO 37001: An Introduction to Anti-Bribery Management Systems. IT Governance
Publishing.

Green, Stuart P. (2013). Official Bribery and Commercial Bribery: Should They Be Distinguished? In
Modern Bribery Law: Comparative Perspectives, Jeremy Horder and Peter Alldridge, eds. Cambridge:
Cambridge University Press.

Guiso, Luigi, Paola Sapienza, and Luigi Zingales (2015). The Value of Corporate Culture, Journal of
Financial Economics. Journal of Financial Economics, vol. 117, issue 1 (July), pp. 60-76.
» Available from www.eief.it/files/2015/07/guiso_sapienza_zingales_joffe_2015.pdf.

Gutmann, Jerg, and Viola Lucas (2018). Private-Sector Corruption: Measurement and Cultural Origins.
Social Indicators Research, vol. 138, issue 2 (July), pp. 747-770.

International Monetary Fund (2016). Corruption: Costs and Mitigating Strategies. Washington, DC.
» Available from www.imf.org/external/pubs/ft/sdn/2016/sdn1605.pdf.

41
Private Sector Corruption

Module 5
International Monetary Fund (2019). Fiscal Monitor: Curbing Corruption. Washington, DC.
» Available from www.imf.org/en/Publications/FM/Issues/2019/03/18/fiscal-monitor-
april-2019.

Moretti, Diogo (2018). The Use of Intermediaries in Corrupt Deals- Lessons from the Petrobrás Case
for Compliance Officers. IACA Research Paper Series, No. 06. Laxenburg, Austria: International Anti-
Corruption Academy.
» Available from www.iaca.int/media/attachments/2018/08/14/diogo_rf_paper_
final_30_7_2018_format_edit.pdf.

Pinto, Jonathan, Carrie R. Leana, and Frits K. Pil (2008). Corrupt organizations or organizations of
corrupt individuals? Two types of organization-level corruption. Academy of Management Review, vol.
33, no.3, pp. 685– 709.

Sööt, M.L. and others (2016). Private-to-private corruption: Taking business managers’ risk assessment
seriously when choosing anti-corruption measures. 2016 OECD Integrity Forum. Paris, March.
» Available from https://pure.au.dk/ws/files/99032535/Integrity_Forum_16_Soo t_Johannsen_
Pedersen_Vadi_Reino.pdf.

Tyler, Tom R. (2014). Reducing Corporate Criminality: The Role of Values. Faculty Scholarship Series.
Paper 4989. New Haven: Yale University.
» Available from http://digitalcommons.law.yale.edu/fss_papers/4989.

Transparency International (2009). Global Corruption Report 2009: Corruption in the Private Sector.

Transparency International, Cambridge University Press, and Ernst and Young.

» Available from www.transparency.org/whatwedo/publication/global_corruption_report_2009.

United Nations Industrial Development Organization and United Nations Offoce on Drugs and Crime
(2007). Corruption prevention to foster small and medium-sized enterprise development: Providing
anti-corruption assistance to small businesses in the developing world. UNIDO and UNODC. Vienna.
» Available from www.unodc.org/documents/corruption/Publications/2012/Corruption_
prevention_to_foster_small_and_medium_size_enterprise_development_Vol_2.pdf.

United Nations Office on Drugs and Crime (2013). India: Incentives for corporate integrity in accordance
with the United Nations Convention against Corruption.
» Available from www.unodc.org/documents/southasia/publications/research-studies/CI_Report.
pdf.

Wickberg, Sofia (2013). Corruption risks and mitigation strategies in Small and Medium Size Enterprise
lending. Bergen, Norway: U4 Anti-Corruption Resource Centre, Chr. Michelsen Institute.
» Available from www.transparency.org/files/content/corruptionqas/Corruption_risks_and_
mitigation_strategies_in_SME_lending_2013.pdf.

42
Private Sector Corruption

Module 5
Student assessment
This section provides suggestions for a post-class assignment for the purpose of assessing student
understanding of the Module. Suggestions for pre-class or in-class assignments are provided in the
Exercises section.

To assess the students’ understanding of the Module, the lecturer may choose one of the two post-
class assignments listed below. The first one is oriented towards political science and law students,
and the second towards business students.

1) Students play the role of government advisors to draft or modify the law on corporate liability for
corruption. Two weeks after the class, students will hand in a draft bill. The draft bill will be accompanied
by a document that explains the grounds of the legislation and the rationale behind it.

The draft bill and the additional document must take into account the local constitutional and legal
framework, and students should decide whether to establish a civil or criminal liability system with
objective or subjective liability. The draft bill may include leniency provisions, i.e. conditions or cases
that allow companies to reduce sanctions in case of violations. In addition, the bill and the additional
document must establish in which cases third parties may trigger corporate liability. Finally, the draft
bill or the additional document must describe which measures companies may take to establish an
effective anti-corruption ethics and compliance programme.

Apart from the core reading on the subject, the lecturer may suggest to students that they check
legislation on this subject, such as the Foreign Corrupt Practices Act (FCPA), the UK Bribery Act 2010,
the United Nations Convention against Corruption (UNCAC) and the Organisation for Economic Co-
operation and Development (OECD) Anti-Bribery Convention (officially Convention on Combating
Bribery of Foreign Public Officials in International Business Transactions).

2) Students choose an existing company and do a critical review of the existing code of conduct or
ethics, taking into account the economic sector in which the company has developed, its size, whether
it trades its shares or not, whether it operates globally or just locally, etc.
A short essay must be submitted in which students explain the difference between a compliance
approach to a code and a values approach to a code,

The lecturer may recommend students to do a prior check of some already existing codes of conduct,
for instance:
Johnson & Johnson’s Code of Business Conduct.
» Available from www.jnj.com/_document?id=00000159-69fe-dba3-afdb-79ffcdd60000.
TGLT’s Code of Ethics.
» Available from http://ri.tglt.com/en/CORPORATE-GOVERNANCE/Code-of-Ethics.
General Electric’s Code of Conduct.
» Available from www.ge.com/in/sites/www.ge.com.in/files/TheSpirit&TheLetter.pdf.

43
Private Sector Corruption

Module 5
Additional teaching tools
This section includes links to relevant teaching aides such as PowerPoint slides and video material,
which could help the lecturer teach the issues covered by the Module. Lecturers can adapt the slides
and other resources to their needs.

PowerPoint presentation Slides

Corporate Criminal Enforcement Using Corporate Liability to Induce Corporate Policing (Jennifer
Arlen, 2016).
» Available from www.oecd.org/corruption/anti-bribery/Roundtable-Liability-Legal-Persons-2016-
PPT-Jennifer-Arlen.pdf.

Video material

A series of videos on collective action initiatives, developed by the Center of Collective Action at the
Basel Institute of Governance, offers interviews with some of the leading anti-corruption and collective
action experts who explain what is collective action, what benefits they bring to markets and society,
who is involved in them and success strategies for Collective Action Initiatives.
» Available from www.collective-action.com/conference2018/videos.

Ethics Illustrated: How to Avoid Conflicts of Interest (2018). United States Department of Agriculture
Office of Ethics (4:43 mins). This video provides practical advice that employees can use right away to
identify and avoid conflicts of interest, properly respond to gifts offered from vendors, and ensure the
highest standards of impartiality are upheld.
» Available from www.youtube.com/watch?v=UH5r3EoM9cc.

Corporate Culture (2016). Duke University – The Fuqua School of Business (14:34 mins). This video
provides an overview of a research project that involves nearly 2,000 executives to learn their views
on corporate culture.
» Available from www.youtube.com/watch?v=7g-BLzjEbXU.

Corruption Risk in Pharma and Medical Device Markets (2016). Richard Bistrong (15:35 mins). In this
video from the 17th Annual Pharma and Medical Device Compliance Congress, anti-corruption and
compliance experts discuss during a panel on “Behind the Bribe: Multiple Real World Perspectives on
How Foreign Bribery Occurs, Is Investigated, and Could Be Prevented.”
» Available from www.youtube.com/watch?v=9bLS1QeAzGI.

Corruption in Brazil: the scam that put politicians behind bars (2017). The Economist (4:49 mins). In
this short video, The Economist’s journalists present one of the world’s biggest corruption scandals,
which has started with investigation in a Brazilian car was and has spread to 16 countries, embroiled
more than 100 politicians and business leaders and put billionaires behind bars.
» Available from www.youtube.com/watch?v=6eyBWX3hVaE.

44
Private Sector Corruption

Module 5
MACN: Tackling Maritime Corruption in Argentina (2019). BSR (5:14 mins). This video presents
the MACN in Argentina and its anti-corruption efforts including a comprehensive Collective Action
programme.
» Available from www.youtube.com/watch?v=vSmQ6C32wMc.

Websites
FCPA Blog offers more than 7 000 posts by 600 different authors including news and commentary
about white-collar crime, enforcement actions and compliance with anti-corruption legislation, in
particular with the Foreign Corrupt Practices Act (FCPA).
» Available from www.fcpablog.com.

FCPA Clearinghouse is an online platform developed by the Stanford Law School that includes various
FCPA-related materials such as reports, articles and statistics.
» Available from http://fcpa.stanford.edu/index.html.

The Basel Institute of Governance’s website offers a rich collection of open access materials on
Private Sector Corruption, Collective Action and Compliance.
» Available from www.baselgovernance.org/publications.

Case studies, news articles and blogs

Cassin, Richard L. (2010). Prison for Ex-Willbros Execs. The FCPA Blog, 28 January.
» Available from https://fcpablog.com/2010/01/28/prison-for-ex-willbros-execs/.

Phys.org (2019) Corruption contagion: How legal and finance firms are at greater risk of corruption,
24 April.
» Available from https://phys.org/news/ 2019-04-corruption-contagion-legal-firms-greater.html.

Sun, Andrew (2019). Why it makes good business sense to focus on environmental, social and
corporate governance practices. South China Morning Post, 25 April.
» Available from https://www.scmp.com/native/business/markets/topics/investing/
article/3007574/why-it-makes-good-business-sense-focus.

The Maritime Executive (2019). IMO Sets New Anti-Corruption Agenda, 15 April.
» Available from https://www.maritime-executive.com/article/imo-sets-new-anti-corruption-
agenda.

United States of America before the Securities and Exchange Commission (2007). In the Matter of
the Dow Chemical Company, Respondent. Administrative Proceeding, File No. 3-12567 (Case study).
» Available from www.sec.gov/litigation/admin/2007/34-55281.pdf.

United States of America v. AGA Medical Corporation Information (2008). U.S. District Court
Minneapolis, Minnesota, Case 0:08-cr-00172 (Case study).
» Available from www.justice.gov/sites/default/files/criminal-fraud/legacy/2012/03/19/06-03-
08aga-info.pdf.

45
Private Sector Corruption

Module 5
Other tools
The Fight Against Corruption - This e-learning tool is a joint product of the UN Global Compact and
the UN Office on Drugs and Crime. It uses six interactive learning modules to further the audience’s
understanding of the UN Global Compact’s 10th principle against corruption and the UN Convention
against Corruption as it applies to the private sector. The tool is targeted at everyone who acts on
behalf of a company. Each module only lasts about five minutes, providing a quick and effective way
of learning. And it is fun too!
» Available from http://thefightagainstcorruption.org/.

46
Private Sector Corruption

Module 5
Guidelines to develop a stand-alone course

This Module provides an outline for a three-hour class, but there is potential to develop its topics
further into a stand-alone course. The scope and structure of such a course will be determined by the
specific needs of each context, and a theoretical and practical part should be included within each
course. A possible structure is presented here as a suggestion:

Session Topic Brief description

1 Introduction: The international The private sector in UNCAC and the OECD Anti-Bribery
anti-corruption regime and the Convention. Exercise: After reading the Conventions,
role of the private sector in the students can discuss the role the Conventions assign
fight against corruption to the private sector in the fight against corruption. The
pre-class exercise may be used in class.

2 Corporate liability for corruption Historical analysis and evolution of corporate criminal
liability in general and for corruption offences
specifically. From individual to corporate liability in
civil law countries. Paradigm shift with UNCAC and the
OECD Anti-Bribery Convention.

3 Models of corporate liability: Differences between and critical analysis of both

Vicarious liability versus models of corporate liability. Models adopted in specific
organizational failure jurisdictions: the US FCPA, UK Bribery Act, Germany,
France and models in the country or region where
the course is developed/given. Discussions about
how to improve the model in force in the respective
jurisdiction(s).

4 Corporate liability and corporate What is corporate culture? Discuss the findings of
culture Graham, Grennan, Harvey, Campbell and Rajgopal
(2019), as well as how these findings apply to big
corporate scandals (Walmart, Siemens, Odebretch).

5 Preventing corruption within the Brief description of Module 11 of the E4J University
company: Legal versus values- Module Series on Integrity and Ethics. Risk assessment,
based compliance programmes policies and procedures. Codes of conduct, tone from
the top, and training. The role of the Compliance Officer.

47
Private Sector Corruption

Module 5
Session Topic Brief description

6 Internal investigations and Discussions about whistle-blowing (how does it fit in

sanctions within the company, the respective legal culture?); internal investigations
and cooperation with the and sanctions (rights of employees, labour and privacy
official investigation issues); and cooperation with the authorities (legal
privilege, and leniency agreements).

7 Third-party risk management Anti-corruption measures for third parties. Red flags,
contractual clauses, due diligence. Exercise 1 may be
presented during this class.

8 Is the “global model” Describe and discuss how the model applies to
applicable to any company? multinational corporations, big local business groups,
state-owned enterprises, and small and medium-sized
enterprises (SMEs).

9 Anti-corruption measures General description of collective action initiatives and

at industry level public–private partnerships. The MACN case.

10 Public corruption and Discuss whether bribing public officials should be

commercial bribery differentiated from bribing private persons. Exercise 4
may be presented in this class.

48
Vienna International Centre, P.O. Box 500, 1400 Vienna, Austria
Tel.: +43-1-26060-0, Fax: +43-1-26060-5866, www.unodc.org