These ICC Guidelines on Agents, Intermediaries and Other Third Parties voluntary guidelines provide companies with advice on how to choose and manage third parties.
Third Parties can sometimes present the “weak link in the chain” in terms of an enterprise’s anti-corruption policies and practices. That is why these Guidelines are presented as a useful guidance tool for enterprises to help them manage third parties and reduce the risk of reputational damage to the enterprise.
It is envisaged that these Guidelines are to be referred to only where a structured risk management approach indicates that one is confronted with a sensitive choice in the vetting or managing of a Third Party.
It should be emphasized that these Guidelines are voluntary, and not prescriptive, and offer a benchmark for companies to adapt to their particular circumstances if they wish. They are of a general nature on what is considered good commercial practice, without any legal or binding effect. It is paramount that enterprises are able to retain flexibility in the manner they may choose to seek guidance from these ICC Guidelines.
These Guidelines refer to the provisions of the ICC Rules for Combating Extortion and Bribery, indicating that enterprises should take measures within their power to ensure that agents agree explicitly not to pay bribes and that enterprises maintain records of all agents retained.
The Guidelines indicate that in selecting a due diligence process, it is for the enterprise to choose the process that is appropriate to it unique circumstances. This process can include an objective review of the Third Party candidate.
On the scope of due diligence, the enterprise can categorize its own Third Party relationships, based on a structured risk management approach, to have a clear understanding of its vulnerabilities. An enterprise’s interests are best served if the due diligence process itself is a thoughtful, comparative process, not a “check the box” exercise. The role of sponsoring and reviewing departments is important in connection with the vetting of the Third Party.
In carrying out anti-bribery due diligence, companies need to be sensitive to circumstances that suggest bribery risks or “red flags” that may suggest commercial, legal, financial, ethical or other irregularities.
After an enterprise has vetted a Third Party, it may be helpful to put the terms of the relationship in writing, as verbal contracts pose greater business and legal risks to enterprises. Finally, as with all company anti-corruption policies and programs, it is useful for enterprises to communicate their anti-corruption policies to Third Parties that they engage, as well as to their own employees.