Top 10 International Anti-Corruption Developments For January 2022

• Published date: 24 February 2022
• Subject Matter: Government, Public Sector, Criminal Law, Government Contracts, Procurement & PPP, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Morrison & Foerster LLP
• Author: Mr Charles Duross, James M. Koukios and Ian K. Bausback

Designed for busy in-house counsel, compliance professionals, and anti-corruption lawyers, this newsletter summarizes some of the most important international anti-corruption developments from the past month, with links to primary resources. This month we ask: What did the U.S. Department of Justice (DOJ) have to say about payments made to foreign officials under duress? What lessons can be learned from the latest installment of Transparency International's annual Corruption Perceptions Index? Which industry was added to the scope of China's years' long anti-corruption crackdown? The answers to these questions and more are here in our January 2022 Top 10 list.

1. DOJ Releases Rare FCPA Opinion Procedure Release, Addresses Payments Made Under Duress. In its first FCPA Opinion Procedure release since August 2020, on January 21, 2022, DOJ stated that it did not intend to take an enforcement action against a U.S.-based company for making a payment to a third-party intermediary to obtain the release of a captain, his crew, and his vessel from detention in "Country A." According to the facts presented by the company, the vessel had been detained by Country A's Navy when the ship inadvertently anchored in that country's waters. Country A detained the crew and captain, taking the captain onshore and keeping him in jail despite his suffering from serious medical conditions. The company's appeals for assistance from the U.S. government were unsuccessful. A third party purporting to act on behalf of Country A approached the company and demanded a cash payment of $175,000 to release the captain, crew, and vessel. The company was concerned that the payment was intended for a government official of Country A and sought an opinion as to whether DOJ would take enforcement action if it made the payment. According to DOJ, given the "highly unusual and exigent circumstances," it provided a previously unpublished "preliminary opinion" within days of receiving the company's request. According to the more detailed Opinion Procedure release, DOJ concluded that the company would not be making the payment "corruptly" or to "obtain or retain business," two elements of an FCPA anti-bribery violation under 15 U.S.C. ' 78dd-2(a). DOJ determined that the "primary reason for the payment was to avoid imminent and potentially serious harm to the captain and the crew" and, citing United States v. Kozeny and the FCPA Resource Guide, noted that "actions taken under duress do not ordinarily constitute crimes." DOJ also determined that the company has no ongoing or anticipated business in Country A and found itself in Country A's water as "the result of an error," which "triggered the payment demanded by the Third-Party Intermediary." DOJ credited the transparent manner in which it sought assistance from the U.S. government and, ultimately, an opinion from DOJ. DOJ also took care to note that the "situation at hand is . . . readily distinguishable from other situations in which a company is threatened with severe economic or financial consequence in the absence of a payment." According to...