I.               Introduction

Compliance Program Expectations for Businesses

- - Does a Company’s Size Make a Difference?

            For all business enterprises with significant interaction with governmental officials internationally, the establishment of compliance programs focusing on international corruption are advisable.  Under the key legal guidelines issued by various governmental and international organizations, small- and medium-sized businesses - - like their large corporate counterparts - - are encouraged to have compliance programs for their employees and other agents to prevent and detect the types of legal offenses which may occur because of the nature of the companies’ operations. 

            The key guidelines which have been promulgated do not make a distinction between the basic expectations for the anti-corruption compliance programs of large companies and those of smaller companies.  The U.S. Sentencing Commission’s seven basic standards for compliance programs, for example, apply to all organizations.  Similarly, the U.S. Department of Justice’s guidance for federal prosecutors determining how corporate offenders will be treated makes no distinction between companies of different sizes in its basic requirement that a corporation’s compliance activities can be taken into account only if those activities are “adequately designed for maximum effectiveness.”

            Nonetheless, there is official recognition that the specific compliance activities necessary are different depending on the size of the company involved - - that smaller companies can satisfy expectations with less extensive compliance programs so long as those programs are designed to be effective in the specific circumstances of the companies involved.  The U.S. Sentencing Commission describes the differences in expectations in the terms of formality:

The requisite degree of formality of a program to prevent and detect violations of law will vary with the size of the organization: the larger the organization, the more formal the program typically should be.

Likewise, guidance on international anti-corruption programs issued in May 2000 by the U.S. Department of State, in consultation with the Justice Department and other U.S. agencies, noted that

            Not all companies’ needs are the same.  A compliance program should be tailored to fit your company’s needs and circumstances (e.g., the . . . size of company).

In June 2000, the Organization for Economic Cooperation and Development (“OECD”) adopted a detailed set of “Guidelines for Multinational Enterprises” which outline standards for anti-corruption as well as other compliance activities.  The OECD guidelines sum up the compliance expectations of governmental agencies around the world for small- and medium-sized companies quite succinctly:

Governments wish to encourage the widest possible observance of the Guidelines.  While it is acknowledged that small- and medium-sized enterprises may not have the same capacities as larger enterprises, governments adhering to the Guidelines nevertheless encourage them to observe the Guidelines recommendations to the fullest extent possible.

For statues and international conventions see A. Laws and Authorities; for recent enforcement actions see B. Case Summaries; and C. Metcalf Summary; for sources of general guidance for compliance programs see D. Bibliography of General Sources.