Avoiding regulators’ roars in the twenties: compliance measures for a new decade

If you haven’t set your corporate resolutions for the 2020s yet, ensuring regulatory compliance in the areas noted below should be chief among them. The penalties for non-compliance with these laws are steep – including fines, prison sentences, and reputational damages – so compliance is key to avoiding the roar of regulators in the new decade.

Sanctions and export controls

If your company has international dealings or is importing or exporting goods, it is important that you have policies and procedures in place to ensure compliance with economic sanctions and export controls laws. Risks of non-compliance are heightened if your company: i) has operations involving countries that are subject to Canadian (or other) sanctions, such as Russia, Ukraine, Venezuela, or Iran; or ii) is buying or selling high-tech goods, military items, or dual-use goods, which are items designed for civilian purposes but that could also have a military use (e.g., cryptography).

Your policies and procedures should allow employees to confirm in every instance that the company, among other things: is not dealing with sanctioned persons or entities; has all export permits required to export items on Canada’s Export Control List; and is not in contravention of any area or good-specific sanctions, such as restrictions on dealings involving the Crimea region of Ukraine. Further, policies and procedures should reflect that any connection to the US, including involvement of dual citizens or an agreement in US currency, could also trigger US sanctions.

It is important to ensure your employees are trained on your policies and procedures, including how to identify red flags, and that they receive periodic refreshers. As sanctions are constantly evolving, it is also necessary to review policies from time to time to confirm they are up to date. For example, Canada amended its sanctions related to Russia and Ukraine in 2019 to add additional designated persons and entities. Employees also have to know they can report any possible issues through internal channels confidentially and without threat of retaliation.

Ethics and anti-corruption

Whether or not your company has operations overseas, company policies and procedures should address ethics and anti-corruption issues. Violation of Canadian laws against bribery or influence peddling in Canada and abroad can lead not only to fines, but also reputational damage and debarment from government contracts. Extra caution should be taken when operating in countries with a low score on Transparency International’s Corruption Perceptions Index.¹ For reference, Denmark, New Zealand, Finland, Singapore, Sweden and Switzerland have some of the highest rankings, while Mexico, Lebanon, the Philippines, Thailand, Brazil, and Vietnam, among many others, scored lower than the average of 43 out of 100. Canada is tied with Luxembourg for 9^th on the list.

Policies and procedures should cover, at a minimum: giving and receiving gifts, entertainment and hospitality, bribery (including facilitation payments), political contributions and lobbying, due diligence of business partners and suppliers, and record-keeping.

Before the end of the decade, new ethical requirements are almost guaranteed to emerge in the global regulatory landscape, with environmental sustainability and global supply chain ethics likely to play a prominent role, so companies must remain abreast of developments.

Competition/antitrust

No matter whether your company’s operations are entirely domestic, mostly international, or somewhere in between, competition/antitrust law should be on your radar. If your staff regularly participate in trade associations or your company enters into joint ventures with competitors, your company may be at a higher risk of breaching competition laws, so more robust mechanisms may be required. In any event, your company should have in place policies and mechanisms to prevent the occurrence or appearance of making improper agreements with competitors, such as price-fixing or bid-rigging, and to restrict the sharing of competitively sensitive information.

Conclusion

Implementing and regularly reviewing and updating policies and procedures in these areas that are tailored to fit your organization’s operations can go a long way towards lowering compliance risks. Companies must also put in place mechanisms to allow staff to report any violations of laws or company policies confidentially and without threat of retaliation. Putting in place policies is not enough though - it’s also vital to set a positive compliance culture and “tone at the top” to signal to employees the importance of compliance and to offer training and regular refresher courses to employees.

The consequences of non-compliance with sanctions, export controls and anti-corruption and competition/antitrust laws are set to be steep this decade, so make regulatory compliance a priority and let the 2020s roar.