coping with Corruption in trading with Vietnam

Order Description

Q1: List all the different types of bribes, payments, or favors represented in this case under a) FCPA, b) Criminal Law of PRC, c) Law against Unfair competition of the PRC. Why is each either legal or illegal?
Q2: For those practices that you listed as illegal, classify each as lubrication, extortion, or subornation, and explain your reasoning.
Q3: Which of the payments, favors, or bribes are illegal under the Foreign Corrupt Practices Act (FCPA)?
Q4: Assuming that the FCPA did not exist, what is the ethical response to each of the payment, favors, or bribes you have identified? Read section titled Ethical and Socially Responsible Decisions in Chapter 5 as a guide to assist you in your decision.
Q5: In your view, which of the expenses detailed in the lawsuit could be in violation of the FCPA, and which could be legitimate business expenses as the American Company contends? Discuss.
Q6: Discuss the legal/ethical issues raised by the comments by the retired Foreign Service agent and the consultant.
Q7: List alternatives to paying bribes in international markets and discuss the pluses and minuses of each.

foreign travel to cash or gifts. (This was especially true when
few PRC officials had been abroad.) As a result, traders report
that dangling foreign trips in front of their PRC clients has become
a regular part of negotiating large trade deals that involve
products with a technological component. “Foreign travel is always
the first inducement we offer,” said an executive involved
in machinery trade. In most cases, traders build these costs into
the product’s sale price. Some trips are “reasonable and bona
fide expenditures directly related to the promotion, demonstration,
or explanation of products and services, or the execution
of a contract with a foreign government agency,” but it may be
another matter when officials on foreign junkets are offered
large per diems and aren’t invited specifically to gain technical
knowledge.
Foreign travel isn’t always an inducement—it also can be extorted.
In one case, a PRC bank branch refused to issue a letter of
credit for a machinery import deal. The Chinese customer suggested
that the foreign trader invite the bank official on an overseas
inspection tour. Once the invitation was extended, the bank issued
the letter of credit.
ANGLING FOR CASH
Some MNCs are asked to sponsor overseas education for the children
of trading officials. One person told a Chinese source that an
MNC paid for that individual’s U.S. $1,500-a-month apartment, as
well as a car, university education, and expenses.
Firms find direct requests for cash payments—undeniably
illegal—the most difficult. One well-placed source said that a
major trader, eager for buyers in the face of an international
market glut, had fallen into regularly paying large kickbacks
into the Honduran, U.S., and Swiss accounts of officials at a
PRC foreign trade corporation. Refusing to make payments
may not only hurt sales, it can also be terrifying. A U.S. firm
was one of several bidders for a large sale; a Chinese official
demanded the MNC pay a 3 percent kickback. When the company
representative refused, the official threatened: “You had
better not say anything about this. You still have to do business
in China, and stay in hotels here.” Not surprisingly, the U.S.
company lost the deal.
Traders of certain commodities may be tempted to resort to
the black market for import and export licenses that are difficult
to obtain legally. A fairly disorganized underground market, for
instance, exists for licenses to export China-made garments to the
United States.
Some branches of the Commodity Inspection Bureau (CIB)
also have posed problems for traders. Abuses have emerged in
the CIB since it started inspecting imports in 1987. A Japanese
company, for instance, informed CIB officials of its intention
to bring heavy industrial items into China—items that had met
Japanese and U.S. standards. The officials responded that they
planned to dismantle the products on arrival for inspection purposes.
The problem was resolved only after the firm invited the
officials to visit Japan.
CASE 2-5 Coping with Corruption in Trading
with Vietnam
Corruption is a fact of life in China. In fact, Transparency International,
a German organization that applies its Corruption Perception
Index (CPI) globally, 1 rates China with a CPI of 3.6 and is number 75
of the 183 countries rated. New Zealand is rated the least corrupt at
number 1 with a CPI of 9.5, the United States at 1924 with a CPI of
7.51, and North Korea and Somalia the most corrupt at number 182
with a CPI of 1.0. The country’s press frequently has detailed cases
of corruption and of campaigns to crack down on bribery and other
forms of corruption. The articles primarily have focused on domestic
economic crimes among Chinese citizens and on local officials
who have been fired, sent to prison, or assessed other penalties.
There is strong evidence that the Chinese government is taking
notice and issuing regulations to fight corruption. Newly issued
Communist Party of China (CPC) regulations on internal
supervision and disciplinary penalties have raised hopes that the
new regulations will enhance efforts against corruption. The regulations
established “10 Taboos” for acts of party members that
violate political, personnel, and financial regulations and who
are involved in bribery, malfeasance, and infringement of others’
rights. The taboos included lobbying officials of higher rank,
handing out pamphlets or souvenirs without authorization, holding
social activities to form cliques, and offering or taking bribes.
Also on the list were making phone calls, giving gifts, holding
banquets or conducting visits to win support, covering up illicit
activities, spreading hearsay against others, using intimidation or
deception, and arranging jobs for others. Some believe that the execution
of three bankers, for “a run-of-the-mill fraud,” just before
the Communist Party’s annual meeting, was an indication of how
serious the government was about cracking down on corruption.
Much of China’s early efforts to stem corruption were focused
on activities among domestic Chinese companies and not on
China’s foreign business community. Traders, trade consultants,
and analysts have said that foreign firms are vulnerable to a variety
of corrupt practices. Although some of these firms said they had
no experience with corruption in China, the majority said they increasingly
were asked to make payments to improve business, engage
in black-market trade of import and export licenses, and bribe
officials to push goods through customs or the Commodity Inspection
Bureau, or engage in collusion to beat the system. The Hong
Kong Independent Commission Against Corruption reports that
outright bribes, as well as gifts or payment to establish guanxi, or
“connections,” average 3 to 5 percent of operating costs in the PRC,
or $3 billion to $5 billion of the $100 billion of foreign investments
that have been made there. The most common corrupt practices
confronting foreign companies in China are examined here.
PAYING TO IMPROVE BUSINESS
Foreign traders make several types of payments to facilitate sales
in China. The most common method is a trip abroad. Chinese
officials, who rarely have a chance to visit overseas, often prefer
1See http://www.transparency.org for more details about its 2010 index.
Cases 2 The Cultural Environment of Global Marketing
Bank was interested in playing golf at “Cobble Beach” (he thought
he meant Pebble Beach). Soon after, the American company paid
for the chairman’s hotel, car services, and green fees in Pebble
Beach. After the chairman expressed an interest in seeing Florida,
the lawsuit says the American company sent its corporate jet to fly
him from San Francisco, where he had been visiting with another
U.S. company, to its headquarters in Florida.
The lawsuit also charges that the American company reimbursed
the consultant for tickets the chairman’s wife and son used
to travel in China and the United States. The lawsuit claims it also
paid for his son’s tennis club fees in Shanghai and golfing fees in
Shenzhen and for the daughter of the bank’s chief information officer
to travel to Europe.
The American company contended that all payments made to
the consultant and all the business trips by the Chinese officials
the company paid for were legitimate costs of doing business in
China. It is the price the company had to pay to help secure a huge
software contract with China Construction Bank worth about
$176 million.
It is important to note that this is an illustration of a civil lawsuit
between two companies and does not involve charges by the U.S.
government and possible violations of the FCPA. However, the report
indicated that the Justice Department was looking into the
charges.
TWO COMMENTS ON DEALING
WITH CORRUPTION
Comment of a Consultant As the head of one
U.S. consulting firm asserts, “Corruption is a huge issue, it’s systemic.
Whether it’s self-dealing, phantom suppliers, kickbacks,
intellectual property theft or inappropriate dealings with governmental
officials, crime and corruption are risks companies face
when operating in China. There are many instances where, unbeknownst
to the U.S. company, various payments are being made
under the table. The company’s credo, the company’s standard
operating procedures, the company’s code of conduct, corporate
governance, best practices—all of that needs to be ingrained and
it needs to be accepted. There has to be constant training and constant
reminding” to the local Chinese staff. Chinese culture is “very
different” from Western culture. As such, “a U.S. company cannot
simply translate its compliance policies and procedures into Chinese
and expect them to have the same effect as in the U.S. The
entire approach must be tailored to the Chinese environment.”
Comment of Former U.S. Foreign Service
Agent A retired agent of the U.S. Foreign Service
raises questions about how strictly the Foreign Corrupt Practices
Act is enforced. The economics officer of the U.S. Foreign Service
says he intentionally subverted the intent of the Foreign Corrupt
Practices Act so U.S. investors and exporters would not lose out
unfairly to companies and agencies from other foreign countries.
“I figured out how business was actually done in corrupt countries,
who was on the take, whether the going rate for host country
cooperation in a particular type of transaction was 10 percent or
25 percent and who was good or bad as a go between.”
“I would tell Americans trying to do business in the host country:
‘Don’t tell me about any corrupt practices you are engaged in, because
I am obliged to write that up and report you to Washington,
but do tell me in detail about corrupt activities by competing foreign
Some traders get around such problems by purchasing inspection
certificates on the black market. According to press accounts,
these forms, complete with signatures and seals, can be bought for
roughly U.S. $200.
Some claim that, for the appropriate compensation, customs
officials in a southern province are very willing to reduce the dutiable
value of imports as much as 50 percent. Because the savings
can far exceed transport costs, some imports that would logically
enter China through a northern port are redirected through the
southern province.
The new Communist Party of China (CPC) regulations address
some of these problems, but unfortunately, the new law raises more
questions than answers. Two kinds of bribes are covered under the
new law: The “Criminal Law of the PRC,” known as common bribery,
applies to the bribery of state officials and employees of stateowned
enterprises, which are most of China’s large companies.
Anyone who demands or accepts money or property in return for
benefits is guilty of bribery. The other is the “Law Against Unfair
Competition of the PRC,” known as commercial bribery. It prohibits
businesses from giving money or property to customers to sell
or purchase products.
The law is confusing in that it says nothing about punishment
for gifts and benefits costing less than $600 or even whether these
transactions can amount to bribes. Thus, tickets to sports events,
which can cost several hundred dollars, wining and dining executives,
or even pharmaceutical samples to physicians remain in a
gray area. The only clue is that Communist Party guidelines prohibit
members from accepting gifts exceeding $500 but that doesn’t
necessarily mean that gifts under $500 won’t be considered a violation
of the law. The trouble with China’s bribery laws is that they
can be interpreted to apply to any gift at all.
AN ILLUSTRATION
Here are some excerpts from a trial concerning a Chinese bank, a
Chinese consultant, and several U.S. companies in which charges
of bribery, among other issues, are involved. The list of charges,
countercharges, and alleged bribery will give you a sample of the
types of behavior that can arise in a transaction where bribery is
rampant.
A Chinese company alleged that it got pushed out of a lucrative
business deal because an American software company secretly
funneled money to powerful Chinese government officials
to ensure a profitable banking contract. In court filings, lawyers
for the Chinese company said they had obtained copies of detailed
e-mails and other records that show that the American company
paid over a million dollars in fees to a consultant for services in
addition to reimbursing the consultant about $170,000 in expenses
covering an array of gifts, hotels, shopping sprees, and entertainment
costs.
The suit also contends that the American company arranged
through the Chinese consultant for two Chinese banking officials
and family members to travel on vacation to Hong Kong, Paris,
Rome, Las Vegas, and the golfing resort of Pebble Beach, California.
These trips were arranged by a consultant who was reimbursed
for an array of gifts given to the Chinese bankers and their families.
The gifts included expensive Sony cameras, luxury outfits from
Versace and Burberry, and perhaps even a $330,000 apartment in
Shanghai.
The suit says an American company official e-mailed another
company executive saying the chairman of China Construction
Part 6 Supplementary Material
Responsible Decisions in Chapter 5 as a guide to assist you in
your decision.
5. In your view, which of the expenses detailed in the lawsuit
could be in violation of the FCPA, and which could be legitimate
business expenses as the American Company contends?
Discuss.
6. Discuss the legal/ethical issues raised by the comments by the
retired Foreign Service agent and the consultant.
7. List alternatives to paying bribes in international markets and
discuss the plusses and minuses of each.
Sources: Walter H. Drew, “Corrupt Thinking,” Foreign Policy , May/June 2005; David
Barboza, “Charges of Bribery in a Chinese Bank Deal,” The New York Times , November
29, 2006; “India, China Ranked 72 out of 180 in Corruption Rankings,” The Hindustan
Times , October 8, 2007; “Take Great Care in Choosing Partners: Corruption Rampant,
but Lately Its Drawing Government Attention,” Business Insurance , March 26,
2007; “China’s Communist Party Issues List of ‘Taboos’ Ahead of Politician Reshuffle,”
International Herald Tribune , January 4, 2008; “China Lists New Anti-Graft Rules,”
BBC News , January 4, 2008; Transparency International, 2012.
companies. In return, if your information is interesting, I’ll give you
my best guess on how corruption works here.’ By doing this I hope
that I have helped level the playing field.”
QUESTIONS
1. List all the different types of bribes, payments, or favors represented
in this case under (a) FCPA, (b) Criminal Law of
PRC, and (c) Law Against Unfair Competition of the PRC.
Why is each either legal or illegal?
2. For those practices that you listed as illegal, classify each
as lubrication, extortion, or subornation, and explain your
reasoning.
3. Which of the payments, favors, or bribes are illegal under the
Foreign Corrupt Practices Act (FCPA)?
4. Assuming that the FCPA did not exist, what is the ethical
response to each of the payments, favors, or bribes you
have identified? Read the section titled Ethical and Socially