Trade is a fundamental part of economic activity and without shipping, trade would simply not be possible. The shipping industry connects almost all industries and exerts influence across the world.
Corruption is one of the biggest threats to the shipping industry. A report by the United Nations (UN) estimates that corruption adds as much as 10% to the cost of doing business internationally.
It has a disproportionate impact on the poor and vulnerable, increasing costs and reducing access to services. In 2018, theMaritime Anti-Corruption Network（宏）是一个全球商业网络，为企业提供独特的商业论坛，为消除海事行业的腐败实践做出贡献，收到了腐败需求的27,000个匿名报告。
Where does corruption thrive? "It thrives where there is a lack of transparency," says Kevin Cooper, Partner at MFB Solicitors.
According toTransparency International“国家成功地遏制腐败具有悠久的政府开放，新闻自由，透明度和信息的贸易。”
Ahead of theManaging Sanctions and Anti-Corruption in Shipping Seminar，我们与凯文库珀交谈，以更好地了解航运业中当前的海洋景观，纸质老虎和合规挑战。
阅读下面的完整采访。
伊恩·戈麦索尔：在航运业的背景下，促进付款似乎如此轻微犯罪，但个人已经追求了低级贿赂的情况。我们可能无法思考的更大，深远的后果吗？
Kevin Cooper：I think the first thing to bear in mind is what a facilitation payment is, and what it is not. It is not a traditional form of bribery.
Traditionally, bribery is where you pay (or give) something to someone to do something they shouldn't do, whereas a facilitation payment is paying, or giving something, to someone to do something they should do.
A facilitation payment is not defined under the UK’s Bribery Act 2010 - the main act that governs this area - but anyone who has an interest in the area knows what a facilitation payment is. It is typically where a low-level public official says, "there's something wrong with your papers," and there isn't, "but pay this fine and I will give you what you need" - this may be customs clearance, or a visa, for example.
便利费通常是一种低级贿赂，实际上，美国的做法与英国的做法不同。我明白，在美国反海外腐败法, which covers the same general subject area, it is permissible to make a facilitation payment as long as you document it.
In short, it depends on the law of the country you are looking at. Under US law it is permissible, under UK law it is not. There is no exception at all for facilitation payments under English law, not even ade minimisone. It could be for one cent, but it is still illegal.
现在当然，如果它是如此少量，那会追诉或当局追究它吗？可能不是，但这并不意味着没有犯罪。
Q:What kind of risks could an insurer or compliance officer face in the case of a bribe, and a facilitation payment?
KC:Both are illegal under English law. A bribe under section 1 of the Bribery Act 2010 bribe is quite straight-forward - I’m going to give you some money, or pay for your holiday, or child's education, or something like that - in return for you doing something that you should not do. Then you have a facilitation payment, which is usually a foreign public official, being paid to do what they should do.
英国法律在对保险公司或合规官的后果方面并没有真正区别对待它们。
关于航运公司内的合规官，雇员支付第1节贿赂的后果是，该雇员和/或该公司（如果其中任何一家受该法约束）将面临被刑事起诉的风险。个人可能会被判10年监禁，或被罚款，或两者兼而有之。
A company can't go to prison, but they can be heavily fined, and there is in principle no limit to the size of the fine that a company can suffer.
Where's the insurers risk here? The UK’s Bribery Act is quite innovative. In the past countries would try to get rid of corruption by speaking to governments and saying, "look, your country or department is really corrupt, and you need to do something about it."
在很多这样的国家，什么都没有发生。他们可能会通过新的法律，但人们不会认真对待，更不用说强制执行了。
What the UK’s Bribery Act does is to punish not just the instigator of the crime, but the victim as well.
简而言之，支付便利费或行贿是违法的，除非你有足够的程序来防止这种情况发生。英国法律以前没有这样做过，当然程度也不尽相同，以使个人或公司有积极义务制定这些政策和程序。
保险公司的风险是，如果支付贿赂，即使没有他们的知识，他们也会受益，他们仍然可以犯刑事犯罪并被起诉。
他们的防御,他们已经把程序place - under Section 7 of the Bribery Act - to prevent bribery. It will, however, be for the court to decide whether they have procedures in place and whether they are adequate.
因此，对于一个处于风险中的保险公司来说，它不需要任何贿赂或便利费的共谋，这就是2010年《贿赂法》的创新之处。
该法案在制造公司将这些政策和程序到位方面非常有效，世界正在发生变化。随着运输部门的公司已经提出了这些政策和程序，在苛刻的贿赂方面的态度开始变化。
It is likely going to take generations to curb the issue, but it is starting to happen.
免疫球蛋白:Is this affecting who insurers or financial institutions are doing business with?
KC:I would say that all risk averse organisations are tightening up their contracts to make sure the people they are either insuring or financing comply with their compliance obligations. This provides a strong basis for demonstrating adequate procedures and enforcing their contractual rights should their contractual counterparties not comply.
I think there will always be insurance and finance available if someone is willing to pay enough for it, but insurers and financial institutions must be attentive. I don't think that it has made many organisations un-insurable, but it has altered the attitude towards bribery, corruption and sanctions and meant that the industry, as a whole, is more compliant.
Q:句子是如何确定的？它由一组标准决定吗？
KC:至于罚款，简单的答案是由法官决定，但有一些判决先例。在某些情况下，如公司罚款，也有一定的标准。
A corporate fine could be a certain percentage of the company's annual turnover - or something to that effect. The Bribery Act doesn't set that out in that degree of detail, so what the judge will be trying to do is - apologies for the cliché - make the punishment fit the crime. The fine will be enough to hurt the company, but it usually won't be enough to put it out of business.
As far as an individual is concerned, it will depend upon the nature of the offence and the offender as well.
发生在私营部门的贿赂行为（为纯粹的商业利益而实施某种形式的腐败行为（付钱给某人做他们不应该做的事情））与处于信任地位并接受贿赂的个人之间存在潜在的区别。
People in the public services may receive a harsher sentence than a private individual. This could take the form of a custodial sentence (imprisonment). This might be suspended (a custodial sentence does not necessarily mean that an individual ends up going to prison - if it is a first offence for example). If it is suspended, it would hang over the head of the individual over a designated period of time. Should they not commit any further offences during that period, then it will be discharged.
Sometimes it will be an immediate custodial sentence, regardless of whether it is a first-time offence or not, if the crime is sufficiently serious.
Q:在分散这些棘手的风险方面，预计会遇到什么样的挑战？根据您的经验，是否存在发达国家或新兴经济体独有的挑战？
KC：我认为没有开发或新兴经济学的挑战是独一无二的，但我认为说新兴经济体是您更有可能看到腐败风险的地方。有一个名为ngoTransparency International谁做得非常有用腐败看法指数, which is based on perception of public corruption in around the world.
Looking at this index, you see Russia, large parts of Africa, South America, India, China and other parts of the Far East tend to be darker on the “heat map” and therefore perceived as being riskier places. Canada, New Zealand, Australia, and the Scandinavian countries tend to be perceived as being less risky.
Q:这个经合组织has decried the “corrosive effect of small facilitation payments, particularly on sustainable development and the rule of law." In your opinion, what can the public and private sectors do to deter, or be more compliant, with regards to bribery and facilitation payments?
KC:Every company needs to be quite clear to their people as to what is acceptable, and what is not.
举一个极端的例子，如果有人给你一份合同是为了支付一个昂贵的假期，那显然是一件坏事，我认为每个人都可以认定这是腐败。
通常更困难的是便利费的支付。他们通常是小的，例如支付一小笔钱给移民官员让你通过，即使你的签证可能是有序的。许多人不会立即认定支付这样的款项是“错误的”。
礼品和热情好客是另一个接受行为可能更难以识别的领域，并且当贿赂法案介绍时，在贿赂法案介绍时存在很多问题。公司款待行业在英国贿赂法案的介绍以来，多年来一直在显着变化。
简而言之，需要有强大，明确的政策和程序。他们也必须不太长时间，因为如果他们太多，大多数人都不会打扰阅读它们。
您还应在合同中说明交易对手需要包含相关条款，以确保他们了解您的反腐败要求，并承诺应用这些原则。
这个same is true of many areas of compliance, including sanctions, anti-tax evasion, data protection (GDPR), ethical policies, and human slavery. These are all areas that companies are requiring other companies to comply with if they are going to do business with them.
It was interesting going to a compliance event in the shipping industry a few months ago and seeing an international home wares manufacturer there. They are concerned about their supply chain with regard to human slavery and other issues - where they may have line of sight, let alone involvement - which would get back to them.
在反腐败和其他类似领域，我们越来越多地达到最低全球标准，因为公司正在国际交易。主要球员不想受到污染，因为别人已经削减了可能导致他们成为大公关的问题的角落。
另一个效果的另一个好例子是，它通常不是经营船只的石油专业，但如果有污染事件，他们的名字就在他们身上。这就是为什么在过去的几十年里，这些公司坚持认为：即使他们不拥有它们，他们只是宪章，并将货物放在船上）达到某些最低标准。当然，这符合声誉风险较少和更安全的运输的合并目标。
Q:今年4月，IMO同意将海事腐败包括为常规工作项。IMO现在将在一个指导文件上致力于解决海上腐败，预计将于2021年完成。您希望在本文件中看到什么？IMO面临的挑战是什么？
KC:I have seen that this has come up on their agenda, and I have seen some working reports on what has been happening. I think that so far, the shipping industry has had a very fragmented approach to anti-corruption.
在我看来，这确实是2010年英国贿赂法案的结果，我们看到了重大变化。我们已经看到，海事反腐网络的建立（已经相当成功）是船东为抵制世界各地的便利费而采取的一项综合行动。
I don't think you will ever be able to completely remove corruption, but there are three things (amongst a few others I am sure) that can help reduce corruption.
你需要立法，你需要通过统一行动保持一致，你需要有一个商业驱动力。你需要让人们遵守法律，但也要让他们意识到这样做符合他们的商业利益。
I think the Maritime Anti-Corruption Network has been quite successful, with a good uptake of responsible ship owners joining. For example, it used to be the case that a ship arrived at the Suez Canal and the canal pilot required a carton of cigarettes or a bottle of liquor to make sure they didn't lose their place in the queue. Masters are now saying they are not going to do that anymore, and if everybody does that then the canal pilot really cannot complain and hold them there. I understand that, traditionally, the canal pilots weren't relying on these bribes, they do it more to see how much they can get out of the ship owners.
据报道的是，苏伊士运河次要促进支付的发病率大幅下降。这对该行业来说是一场巨大的胜利，但我认为减少许多领域和地点的促进支付和腐败需要更长时间。
我欢迎国际海事组织开始调查这一事实，我只希望它所提出的将是业界的成果，但我们不会知道，直到我们看到他们的建议。
Q:Can you describe a recent case which was of interest to you (dealing with bribery/ corruption)?
KC:这个re have been few cases specifically within this field in the last few years.
我主要参与为船主和保险公司设计的政策和程序。偶尔，我一直在交往航运业与金融业之间的界面 - 也就是说投资者。
It has been said that, if a shipping company complied completely with the Bribery Act and refused to make a facilitation payment, it would go out of business. The UK Chamber of Shipping has produced with a set of协议for resisting facilitation payments. It's arguable that this approach better serves the interests of the Bribery Act because what you are doing is resisting and making it very difficult, but at the end of the day you are not shooting yourself in the foot by saying, "I'm not going to pay," and potentially going out of business, or ignoring your own policies, out of necessity.
This is the approach the shipping industry has generally adopted. It has not yet gone before the courts, so we don't know whether it works or not, but there have been enough people who know enough about this topic to make us confident that this is an appropriate approach.
When you come across financial institutions, such as banks and hedge funds, they often say, "We have a zero-tolerance approach to bribery and we will not allow any facilitation payments.”
But if they want to invest in the shipping industry, they must understand the particular pressures on a shipowner.
处理这种方法上的分歧比我处理过的一些法庭案件更有争议。
Keen to know more about compliance with trade sanctions, anti-corruption and anti-money laundering regulations in the maritime industry?
Join us for theManaging Sanctions and Anti-Corruption in Shipping为期一天的研讨会,看实际steps you need to take to stay compliant.
