35 ASIAN LEGAL BUSINESS – JUNE 2023 WWW.LEGALBUSINESSONLINE.COM ANTI-CORRUPTION successful implementation of UNCAC , companies operating in the region therefore may want to be on the lookout for even more progressive reformations of local ABAC legal standards, or the birth of a regional framework that may take an international approach,” says Tan. “Each company will have its own unique risk profile, which will depend on the company’s industry segment and business model, as well as its geographic footprint. Will the business depend on crucial licenses and permissions? Will it require frequent interaction with public officials? Will there be regular corporate hospitality? What is the anti-bribery landscape in the jurisdiction? Regulators will expect that the company’s compliance program be tailored to the company’s risk profile. This highlights the need for conducting a robust risk assessment and is why there is no one-size-fitsall compliance program. Off-the-shelf policies may be a helpful starting point, but must be customised for a company’s unique risks. These risks evolve as the business evolves, which is why it is important to periodically test the compliance program and make adjustments and enhancements, as necessary,” says Levison. The second area is the growing risk that arises from the use of messaging applications, point out experts. “Many businesspeople across the world rely on these apps (e.g., WhatsApp, LINE, WeChat, etc.) for daily communications. Southeast Asia is no exception, and we have seen a tendency in the region for employees to use these applications on personal devices for business communications. We also observe that discussions regarding improper conduct often take place on employees’ personal devices, as opposed to their companyissued devices or emails. The DOJ has recently laid out detailed expectations for companies to implement effective measures to preserve all businessrelated communications, regardless of their medium, and that corporate compliance programs (including relevant policies and procedures) should provide a means to retain and access such business communication if needed. The DOJ has highlighted that it will take stricter enforcement positions against companies that fail to implement such measures surrounding ephemeral messaging applications. This is an area that companies operating in the region should consider when designing or enhancing their overall compliance policies and procedures,” adds Levison. Due to the way the region operates due diligence becomes really important. One of the globally-referenced due diligence resource guides, the OECD’s Due Diligence Guidance for Responsible Business Conduct, specifically outlines the relevancy of companies scoping for and identifying risk touch points (e.g. bribery risk) in operations, supply chains and business relationships to allow for tailoring of due diligence methodologies. “This is even more pertinent in the case of companies in Southeast Asia facing unique business risks due to the peculiarities of their operational location. This would require due diligence which can account for both operational and cultural contexts. The guide also sets out that the practice should also involve ongoing communication with stakeholders (e.g. third parties) so that measures continue to be dynamic and responsive towards the changing expectations in the relationships,” says Tan. “More importantly, notwithstanding the extensiveness of one’s due diligence methodology, instilling responsible business conduct into the community plays an integral systemic role in cementing good due diligence standards. Otherwise, businesses may face difficulty in realising their measures due to challenges such as unavailable data, or unreliable and unclear data, often arising from the lack of transparency or proper documentation in place. The constant changing of international benchmarks on due diligence objectives such as business sustainability, corporate governance or susceptibility to bribery and corruption may also be overwhelming and give rise to the perception of due diligence practice being too labourintensive,” he adds. Experts say that Southeast Asian companies must be prepared to take swift and decisive action if they suspect or detect any instance of bribery or corruption within their organisation. Regulators expect companies to investigate such incidents thoroughly and implement appropriate remediation measures, including enhancements to internal control systems and disciplinary action against employees, wherever necessary. “Companies operating in the region should understand their potential regulatory exposure in all relevant jurisdictions, especially if the alleged conduct is cross-border in nature. This approach allows companies to understand reporting obligations under local law, and to the extent available, protect the privileged nature of work product (e.g., interview notes, reports, legal advice), under the attorney-client privilege, litigation privilege/attorney work product doctrine, or similar theories. Some jurisdictions may require self-reporting, and others may not, but reporting in one jurisdiction may trigger reporting in another jurisdiction. It is, therefore, important to work with counsel who understand these complex issues regarding overlapping or conflicting reporting requirements, and who can assist in evaluating the risks and benefits of reporting,” says Levison. Some jurisdictions may require selfreporting, while others may not. However, reporting in one jurisdiction may trigger reporting obligations in another jurisdiction. Therefore, it is essential to work with counsel who can navigate the complex issues related to overlapping or conflicting reporting requirements and assist in evaluating the risks and benefits of reporting, say experts. “Many countries in the region are civil law jurisdictions that do not recognise legal privilege, even if they require lawyers to maintain the confidentiality of client communications. Even the common law jurisdictions in the region may give law enforcement authorities wide-ranging powers, and may limit the application of legal privilege relative to that in common law jurisdictions elsewhere. Appreciating these nuances will inform communications protocols during investigations and how documents are produced to law enforcement,” says Levison.
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