Clare DanesHe used to work in the movie business so you might think the production crew of the Showtime series Homeland would just give him a call. After all he is fast becoming known as ‘the translations guy’ in the Foreign Corrupt Practices Act (FCPA) world. If they had called Jay Rosen, Vice-President for Legal and Corporate Language Services at Merrill Brink International, they probably would have saved themselves quite a bit of embarrassment.

Michael Skapinker, in a Financial Times (FT) article, entitled “Avoid ‘Homeland’-style translation tricksters”, cautioned about forgetting to use translation professions. He wrote about a recent discovery on the Showtime series that “The makers of Homeland, the US television series, failed to take this precaution. And so, in the most recent episode filmed on a Berlin-based set of a Syrian refugee camp, the artists who were commissioned to provide some Arabic graffiti had written “Homeland is racist” and other disparaging slogans.” Why does it matter? As Skapinker wrote, “It is easy to see this lack of regard for other peoples’ languages as anglophone arrogance. In fact, it happens in many cultures and not always because someone was being subversive. Companies in non-English speaking countries frequently use random English words and letters on their products to give their customers the illusion of being sophisticated.”

The bottom line is that your translation services matter. In the FCPA world, it can be the difference during an internal investigation where an individual’s liberty can be on the line. But it is more pedestrian as well, with the FCPA Guidance mandate that your Code of Conduct and anti-corruption compliance policies and procedures be translated into local languages. Beyond the obvious legal requirement that you need to communicate your compliance expectations in a manner that your non-English speaking employees can understand; it is hard to follow a law if you do not know what action it mandates because your employer fails to tell you in a language that you understand.

Although Skapinker was not writing about the FCPA when he said the following, it would seem applicable. He noted, “If a company is dealing with an issue that could have significant consequences, they should find a reputable translator and ask for references from other customers. It is important that the translator knows the industry, political systems and cultures. There are nuances that are easily lost in translation.”

But translations are just as important if you are going the other way as well. So it is important for a Chief Compliance Officer (CCO) or compliance practitioner to receive a solid translation of other country’s anti-corruption laws so they will be able to follow those dictates as well. This is why the recent presentation by Rosen and his translations team at Merrill Brink have translated Brazil’s concept of the Integrity Program in accordance with Law No. 12.846/2013 into English from Portuguese. For any US or UK company doing business in Brazil this is more than simply something that is ‘nice to have’, it is mandatory as the compliance guidance attempts to clarify the concept of the Integrity Program and its regulation by Decree No. 8.420/2015, of March 18, 2015, regulating the Clean Company Act, which took effect on January 28, 2014. The Integrity Program focuses on anti-corruption measures adopted by the company, especially those aimed at the prevention, detection and remediation of harmful acts against national and foreign public administrations provided in Law No. 12.846/2013.

This translation is important because, while the Brazilian Clean Companies Act generally follows the strictures of such anti-corruption laws as the FCPA and UK Bribery Act there are some significant differences. Carlos Ayers, writing in FCPAméricas, has identified five significant differences.

  1. Scope of the Clean Companies Act. First and foremost, “companies that have compliance programs in place “specifically to comply with foreign anti-bribery laws, should acknowledge the necessity of adapting them to Brazil’s new legislation, in particular to cover fraud in public procurement and in the execution of contracts with the Public Administration.”” Ayers also states, “the Clean Companies Act covers more than just corruption. Significant parts of its prohibited acts address illegal conduct related to public tenders and public contracting (not necessarily linked to corruption). Given this, the CGU Guidance highlights that compliance programs designed to prevent and detect only corrupt conduct might not address all the conduct prohibited by the Clean Companies Act. Therefore, companies operating in Brazil should revise their compliance programs to make sure they cover all conduct prohibited by the Clean Companies Act.”
  2. The importance of monitoring your compliance program going forward. Ayers stated the “Guidance notes that the pressure on companies to meet unrealistic commercial goals may lead employees to commit wrongdoing, in violation of the company’s compliance program. Given this, the CGU Guidance considers it important for companies to monitor the stated goals of their enterprises so they are not conveying the impression that business should be obtained at any cost, at the expense of compliance.”
  3. Maintenance of complete and accurate books and records. This is more than the FCPA accounting requirements for such accurate books and records. Obviously with a nod to the corruption engaged in by Petrobras employees, it also includes a requirement that records should “justify the need to hire third parties and include information about the price agreement and the market price, with justification for payments above market value.” Yet it even goes further to require ongoing monitoring “related to transactions that represent higher compliance risks.”
  4. Additional requirements for hotline and other internal reporting. Here the Guidance takes the hotline requirement a few paces past those required in the US. A company must be transparent in its response and allow an employee who reports to reasonably track the progress of any such legitimate report. As Ayers reports, the “Guidance suggests that companies implement channels to give reports and answer questions about the compliance programs. The channels should be free and easily accessible to everyone in the company and open to third parties and the public, where appropriate.”
  5. The importance of internal investigations. While Ayers had labeled this section as “the increased importance of internal investigations” after the Yates Memo I do not think that the Brazilian importance around internal investigations exceeds the pressure on US companies going forward. Yet, the Guidance “highlights that “the detection of evidence of the occurrence of illegal acts against the local or foreign Public Administration should lead the company to initiate an internal investigation which will serve as basis for appropriate actions to be taken”. The CGU Guidance further provides that internal rules should address core aspects of internal investigations, such as deadlines, responsibilities for investigating allegations, and identification of who should receive the results of the investigation.”

Skapinker said in his piece, “The makers of Homeland have been taken for mugs, but they will probably get over the embarrassment, if they haven’t already.” Unfortunately, you may well have far more than embarrassment if you get your translations wrong in an internal investigation or your FCPA compliance program. So I suggest you ring up Jay Rosen and have him do an assessment for you. While you are at it, you should download the Merrill Brink translation of the Integrity Program around the Clean Companies Act and implement the guidance into your compliance regime as well.

To download a copy of the translated Guidance, click here.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2015

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