Shanghai Foreign companies doing business in China must navigate a business culture in which bribery is rife, finding ways to remove obstacles to expanding in the world's second-largest economy without running afoul of local or home-country laws.
Especially in areas such as dealing with local officials in charge of permits, it is still common for bribes, whether cash or illegal gifts, to be expected in return for providing the necessary approvals, industry and legal experts say.
For US companies in particular, that means they need to take pains not to run afoul of the Foreign Corrupt Practices Act (FCPA), which bars US firms and others from paying bribes to officials of foreign governments.
"Any industry that you see that is heavily regulated typically is high-risk," said Meg Utterback, a partner at the law firm King and Wood Mallesons in Shanghai who frequently deals with corporate investigations.
Utterback named health care, construction and energy as examples of industries that fall into that category in China.
Permit payoffs
The US Securities and Exchange Commission (SEC) and Department of Justice have stepped up scrutiny into potential violations of the FCPA, especially in countries like China, where state-owned companies are a big force in the economy.
In the latest move, reported by Reuters last week, the SEC has started investigating major US movie studios and their dealings in China, sending letters of inquiry to at least five studios in the past two months including News Corp's 20th Century Fox, Disney and DreamWorks Animation.
The inquiry involves potential inappropriate payments and how the companies dealt with certain government officials in China, according to a person familiar with the matter.
The film industry in China is heavily regulated, with the government limiting the number of foreign films shown in theatres each year. It eased those controls in February during a US visit by China's leader-in-waiting, Xi Jinping.
Many of the issues faced by foreign companies in China are similar to those behind allegations of widespread bribery in Mexico by Wal-Mart Stores, the world's largest retailer, as reported by the New York Times last week.
Wal-Mart has disclosed an internal investigation into the allegations and said it was cooperating with federal authorities.
"You see the same issues here in terms of getting permits and constant pressure in the market from local competitors," said Beatrice Schaffrath, a Beijing-based anti-corruption and compliance lawyer.
In one example, cosmetics company Avon Products in 2008 disclosed that it had opened an internal inquiry into whether its China business, the first foreign company to win a direct-selling licence in 2006, had violated the FCPA, and the SEC is now investigating Avon's China activities. One specific issue in China is that with so many companies and institutions owned by or linked to the state, there are many people who could be considered government officials under the FCPA who would not be in other countries.
‘Very tough'
Even doctors at state-run hospitals or employees of state-owned enterprises (SOEs) can be deemed government officials for the purposes of the FCPA, legal experts say.
"It's very tough, because there are so many quasi-governmental institutions, SOEs and government officials involved in the process of doing business," Utterback said.
Beyond bribery cases that might gain attention from US authorities, companies also face an uphill battle in preventing commercial bribery, although it is banned by local laws.
Such practices are widespread in areas such as procurement, with people in charge of spending decisions in local companies or government agencies often expecting kickbacks, industry participants say. Some say the problems are worse in less-developed areas of China. Foreign business people complain in private that uneven enforcement of such rules by local officials puts them at a disadvantage because local companies are often subject to less scrutiny and can do whatever it takes to win contracts.
Guilty: Finders' fees
Last week, a former Morgan Stanley executive in China pleaded guilty to conspiring to evade internal controls required by the FCPA and settled related charges with securities regulators, including a permanent bar from the industry.
Garth Peterson, who was a managing director in Morgan Stanley's property investment and fund advisory business, secretly arranged to have millions of dollars paid to himself and a Chinese official and disguised the payments as finder's fees charged to Morgan Stanley, US regulators said.
Morgan Stanley cooperated in the investigation and was not charged.
