Anatomy and Impact of Bribery on Siemens AG

Article excerpt

INTRODUCTION

FCPA was enacted by the US congress in 1977 (amended in 1988 and 1998) in response to allegations that major U.S. corporations were bribing foreign government officials, politicians and political parties to attract business and to gain undue advantage. Interestingly, the bribery allegation came to surface during the Watergate investigations (O'Melveny Handbook, 2012). FCPA enactment was the first of its kind and led to growing number of anti bribery laws through the ratification of the Organization for Economic Cooperation and Development's Convention on Combating Bribery of Foreign Public Officials in International Business Transactions in 1998 (OECD Anti-Bribery Convention). The passage of the UK Bribery Bill in 2010 is the most recent act in connection with the OECD Anti-Bribery Convention (OECD, 2012). Essentially, being legally liable for bribery is a very recent phenomenon. More interestingly, before 1999 in Germany, corporations could deduct bribery payments as business expense (Schubert and Miller, 2012).

The U.S. Congress provided many justifications for passing the FCPA. Prominent among them are: (i) it is unethical and against the moral values and expectations of Americans; (ii) it erodes confidence in the much valued free market systems by directing resources to entities that are unable to compete on price, service and quality, and; (iii) it casts a shadow on all American corporations whereby there is loss of reputation, loss of contracts, lawsuits, and possible seizure of corporation's assets in a foreign land (Unlawful Corporate Payments Act of 1977).

There are two parts to FCPA--(i) anti bribery and (ii) accounting provision--which are applicable to any person (issuer of U.S. securities, including non-public U.S. companies, U.S. residents, foreign non-residents) who directly or indirectly pays or promises to pay anything of value to a foreign official corruptly for influencing decision to obtain, redirect or retain business (O'Melveny Handbook, 2012). The accounting provisions require all issuer firms to keep their books and records in reasonable detail to accurately and fairly record all transactions and dispositions of their assets. Under the accounting provisions, issuers are also required to devise and maintain adequate accounting controls (O'Melveny Handbook, 2012).

Of the two enforcement bodies, DOJ is responsible for the criminal and civil enforcements as it relates to domestic concerns and foreign nationals, while the SEC is responsible for the civil enforcement as it pertains to issuers. There are two defenses to bribery allegation under the FCPA. The payment has to be (i) lawful under the country's laws, and or (ii) reasonable and bona fide expenditure such as travel and lodging expenditure for demonstration or explanation of the product or service to a foreign official. Also, payments made to expedite routine governmental actions such as permits, licenses, postal services, customs, and electrical connections are allowed. They are called grease or facilitating payments.

FCPA violation(s) may result in criminal and civil prosecutions by the DOJ and other actions by the SEC. First, in criminal prosecutions, business entities can be fined up to $2 million; officers, directors can be fined up to $100k and be jailed for up to five years. Violators can be also subject to alternative fines act which can result in fines up to double the amount of the benefit received. Civil violations can result in fines up to $100k for a natural person and up to $500k for any other person. The SEC can also bring action to enjoin the offending act against the business entity or the persons who act on its behalf. Moreover, the guilty party may be barred from doing any business with the federal government. Essentially, violation of the FCPA is not a slap on the wrist; it can substantially cripple the organization and or result in jail and ultimately loss of job and reputation for the officers/agents (Foreign Corrupt Practices Act, 2012). Until 1998 there were few prosecutions under the FCPA, however since then, prosecutions have increased many times over with peak number of cases filed in 2007. For example, there were 3 cases against companies (7 against individuals) in 2002, while there were 27 (16 against individuals) cases in 2007 (O'Melveny Handbook, 2012). While Wal-Mart is the latest big name company being investigated by DOJ/SEC, over the years many prominent firms (and individuals) such as: Halliburton Co., Smith and Nephew PLC, Diageo PLC, IBM, Johnson and Johnson, Daimler AG, Monsanto, BAE Systems, Avon, Alcatel-Lucent, Bridgestone Corporation, General Electric Company, Chevron Corporation, Lockheed Corporation, and Tyson Foods have come under the bribery scanner (FCPA and Related Enforcement Actions, 2012). Unfortunately, the list keeps growing; as of March 2012, the SEC is investigating 81 companies for possible FCPA violations (The FCPA Blog, News and Views about the United States Foreign Corrupt Practices Act, 2012). Generally, the offending companies tend to settle with DOJ/SEC by paying fines and implementing strong anti bribery controls. In addition to the Siemens anti bribery action, the United Nations Oil-for-Food Program in Iraq ensnared many prominent companies and their foreign subsidiaries. In Iraq, a humanitarian program was set up to provide food and relief to Iraqis from sanctions that followed against the Saddam Hussein led government following Iraq's invasion of Kuwait in 1990. Through this program, the Iraqi government could purchase food, medicine and critical infrastructure supplies by selling its oil. There was widespread corruption in this program, because the top Iraqi officials required anyone doing business with them to provide a 10% kickback. Entities that did business with Iraq under this program simply recouped the 10% kickback by adding "after sales service fee" in their bids or contracts with the Iraqi government. There were many prominent companies which participated in this scheme (SEC vs. ABB Ltd., 2010).

Generally, corporations investigated for FCPA violations experienced damaged reputations as well as a decline of 8.9% in their share prices (Karpoff et al., 2012). Moreover, Cheung et al. (2011), found that worldwide firms that win contracts by paying bribes underperform their peers from up to three before and three years after winning the contract for which the bribe was paid.

As stated previously, of all the companies charged for violating the FCPA, Siemens has paid the biggest price for its corrupting activities. It is estimated that Siemens paid about $1.6 billion dollars in penalties, fines, and disgorgement of profits to the SEC, DOJ and German authorities. So far this is the largest penalty/fine paid by a company for FCPA violations (Siemens AG and Three Subsidiaries, 2008). The goal of this paper is to examine the circumstances surrounding this case followed by an analysis of lessons from such violations of the FCPA.

BACKGROUND: SIEMENS AG BRIBERY CASE

Beginning in mid 1990s and through 2007, Siemens and its subsidiaries paid approximately $1.36 billion in bribes to win contracts in Venezuela, China, Israel, Bangladesh, Nigeria, Argentina, Vietnam, Mexico, Greece, Iraq and Russia. Of the $1.36 billion; $554.5 million was paid for unknown purposes and the remaining was paid to foreign officials through cash desks and slush funds. This was done through falsification of corporate books and records and knowingly failing to implement internal controls (Siemens AG and Three subsidiaries, 2008).

The most prominent of these payments was in connection with the National Identity Card Project in Argentina. Around 1994, the Government of Argentina issued tender for bids for a state of the art national identity card. In 1998, Argentina awarded the identity card project to Siemens (Argentina subsidiary) for approximately $1 billion. Thereafter, Siemens started making payments to an entity called Argentine Consulting Group, which provided no legitimate services on the project. These payments were to Argentine government officials for awarding the project to Siemens. In 1999, in the midst of a presidential campaign, Argentina put the project on hold. After the election, the new government informed Siemens that the project has to be renegotiated otherwise the project would be terminated. After the renegotiations, the top government officials said they would issue a decree that required all citizens of Argentina to get new identity cards. Thereafter, Siemens agreed to pay $6 to $10 million to those officials who would have issued the decree. However, the decree was never issued and the national identity card project was cancelled in 2001. From 1997 to 2007, Siemens paid at least $15.73 million to entities that were controlled by Argentine officials, $35.15 million to Argentine Consulting Group and $55 million to other entities. It was well known to Siemens employees that these were improper payments. The cancellation of the project resulted in arbitration between Siemens and Government of Argentina. In 2007, Siemens was awarded $217 million through the International Center for Settlement of Investment Disputes (ICSID) against Argentina. In connection with these corrupting activities; SEC and DOJ brought charges against Siemens and its Argentina affiliate, Siemens executives and other intermediaries/consultants who were part of the conspiracy to bribe Argentine officials.

In late 2011, DOJ and the SEC charged nine former Siemens executives and agents with conspiracy to violate the FCPA and the wire fraud statute; money laundering conspiracy and wire fraud (SEC Charges Seven Former Siemens Executives, 2012). The nine charged executives and agents were as follows:

(i) Uriel Sharef--managing board member from July 2000 to December 2007. He met in United States with payment intermediaries and agreed to pay $27 million in connection with the Argentine national identity card program.

(ii) Ulrich Bock--head of major projects for Siemens Business Services from October 1995 to 2001. He authorized payments to Argentine government officials.

(iii) Stephan Signer--he replaced Bock and also authorized payments to Argentine officials.

(iv) Herbert Steffen--CEO of Siemens Argentina from 1983 to 1989 and again in 1991, and group president of Siemens Transportation Systems from 1993 to 2003. He directly met with Argentine officials and offered bribes.

(v) Andres Truppel--CEO of Siemens Argentina form 1990 to 2002, communicated with Argentine officials regarding bribe payments, also participated in meetings where bribes were negotiated and promised.

(vi) Carlos Sergi--board member of Siemens Argentina and also a consultant who served as intermediary for payments between Siemens and the Argentine officials.

(vii) Bernd Regendantz--Chief Finance Officer of Siemens Business Services group who authorized bribe payments on Siemens' behalf.

(viii) Miguel Czysch--served as an intermediary on Siemens' behalf.

(ix) Eberhard Reichert--technical head of Siemens Business Systems.

ANALYSIS

Siemens which is founded in 1847 is one of the largest companies in the world with market valuation of $72 billion dollars. It is considered to be very similar to General Electric with products and services in Energy, Healthcare, Industry, Infrastructure, Financial Services, Real Estate, Home Appliances, Telecommunications, and Communication networks (Siemens: Our Business, 2012).

Spokesperson for German investigators stated that "[b]ribery was Siemens' Business Model" and that "Siemens had institutionalized corruption" (Schubert and Miller, 2008). Bribing by Siemens may have started right after World War II. During the war the company's factories were bombed and its intellectual property confiscated. Thus, the company turned to bribery as a sales technique to gain access to less developed countries in order to stay in business. Before 1999, bribes were deductible business expense and not a crime in Germany. It all changed in February 1999 when Germany became signatory to the OECD Anti-Bribery Convention (Germany OECD, 2012).

The bribing culture was so embedded at Siemens that when one of Siemens's former mid level executive--Reinhard Siekaczek--was interviewed by a newspaper, he stated that he would never go to jail and thought if his and others actions became public, they all would go to the jail and play cards (Schubert and Miller, 2008). Mr. Siekaczek had an annual budget of $40-50 million for bribing. He states that these moneys were vital for maintaining Siemens' competitiveness overseas. He further elaborated that bribing helped to keep the business unit alive and not jeopardize thousands of jobs at Siemens.

The most prominent of the indicted Siemens executive was Uriel Sharef. Dr. Sharef completed his Economic and Social Sciences studies at Sydney University, Australia, and earned his doctorate at University of Fribourg in Switzerland. He joined Siemens in 1978, and finished his Siemens career as a member of the Siemens Managing Board in 2007 (Businessweek: Executive Profile & Biography, 2012). Under German law, the Managing Board is similar to the top management team of U.S. Corporations. The duties of the Managing Board are the "management of the Company and decide basic issues of business policy and corporate strategy as well as on the annual and multi year planning" (Siemens Annual Report, 2011). More importantly, the Managing Board is responsible for monitoring the company's adherence to statutory provisions, official regulations, and internal company policies. The Managing Board closely works with and provides information to the Supervisory Board (similar to Board of Directors of US corporations) of company's strategies, financial position, earnings, compliance and risks. Essentially, Dr. Sharef was part of the small group of powerful leaders at Siemens. While a member of the Managing Board, Dr Sharef was also responsible for managing the Power Generation, Power Transmission and Distribution groups and the Americas.

American authorities in their complaint alleged that Siemens won the bid for the Argentine national identity card in 1998 with litigation related to it finally ending in 2007 (SEC vs. Sharef et al., 2011).

In 1999, the President/CEO of Siemens emphasized that each business unit must earn a profit more than its cost of capital and in order to do that each business unit must hold top positions in their world markets. He concluded that the company is evolving into a highly flexible, transparent (emphasis added) growth oriented business. The Annual Report also stated that the company held its regular supervisory meetings whereby it interacted among Supervisory Board members and the members of the Managing Board. They also discussed the auditors report. There is nothing unusual noted in the Annual Report. In terms of risk assessment, the report noted that each business unit is responsible for its own risk management, but is helped by the staff departments to control risk through exercise of policy, coordination and management authority. The report added that internal auditors (emphasis added) regularly review the adequacy and efficiency of their risk management and control systems. Finally, the report showed that Dr. Sharef oversaw the Power Transmission and Distribution groups (Siemens Annual Report, 1999).

There seems to be nothing out of the ordinary except that, in 2000, the Power Generation and Transportation group had posted a loss. In 2000, Dr. Sharef was appointed to the Managing Board and to the Corporate Executive Committee. The Corporate Executive Committee is responsible for the worldwide internal control and risk management systems and its effectiveness. The goal of the risk management system is to ensure accurate and prompt accounting for all business transactions and to identify risk. (Siemens Annual Report, 2002). Again, the Annual Report noted no objections in its audit (Siemens Annual Report, 2000).

In 2001, the President/CEO reasoned that worldwide slowdown in business due to World Trade Center bombings and the upheaval in communication and information fields affected Siemens' performance. The report stated that company's six business areas are responsible for their own operations. Supposedly, the decentralized structure for each business unit at Siemens provided the units an opportunity to use its entrepreneurial skills to be close to their customers. I wonder if this lead to oversight problems that come to fore in few years. As previously stated, the company wants its units to be either number one or be second in their markets. I believe this put tremendous pressure on its business unit leaders to do well at any cost including bribing. Most importantly, the annual report mentioned the write-down (contract loss) of about 258 million euros in connection with production and outsourcing contract for a border control system in Argentina. It also stated that the contract was cancelled by an Argentina government decree (Siemens Annual Report, 2001).

The Siemens Annual Report (2002) stated that the company is committed to implementing the highest standards of corporate governance, and aims to be a good corporate citizen. The company also has code of ethics that is required to be followed by the members of the Managing Board and all Siemens employees worldwide. The letter to the shareholders also discusses that generally the confidence and trust in respected institutions has crumbled worldwide and restoring trust is now on the top of the company agenda. The Managing Board's goal is to provide transparency and welcomes the media and public policy arenas on strengthening corporate management and oversight systems. The letter emphasized Siemens' commitment to improve profitability beyond the target margins already defined. Ominously, it reported that the Latin market is extremely difficult.

In the 2003 Siemens Annual Report, the President of the company stated that we have established a highly transparent internal and external reporting system; and that integrity guides the company's conduct towards its employees, business partners and shareholders.

In 2004, Siemens adopted new by-laws for the Supervisory Board and its committees to reflect the requirements of the Sarbanes Oxley Act (SOX) and the revised German Corporate Governance Code. Again, according to the Annual Report, the Managing Board implemented a new risk assessment system which met all legal requirements. However, for the first time, company selected independent members on the Audit Committee, and the Supervisory and Managing Boards (Siemens Annual Report, 2004).

In 2005, the firm selected a new President/CEO and stated in its vision that it wants to uphold humanity, equal opportunity and strict ethical standards in all its businesses. While discussing its corporate responsibility, Siemens emphasized its goal of becoming the best-in-class in corporate governance, business practices, sustainability and corporate citizenship. The company again stated that it intends to grow twice the world economy. The firm reaffirms its commitment to corporate responsibility. The Siemens Business Services group faced problems and posted loss of 690 euros in 2005. Siemens again stated that its disclosure controls and procedures and its internal controls over financial reporting is effective The Siemens Business Services group was headed by Dr. Sharef at one time (Siemens Annual Report, 2005).

In 2006, except for the Siemens Business Services group, every group reported strong growth. More importantly, the bribery investigation is reported to the shareholders for the first time. Siemens management does a mea culpa, and states that "it has now become clear to us that our compliance measures are not yet sufficient, that several former and current Company employees are under investigation regarding allegations of embezzlement, bribery and tax evasion. The company hired a NY based law firm to start the investigation related to bribery and other violations. Also, a Managing Board member who was also the firm's Chief Financial Officer left the company. Due to the investigations, the company launched a new comprehensive, interactive online compliance course that will be completed by all senior executives in Germany, established a new communication channel via an ombudsman and set up a special task force to be headed by the Chief Compliance Officer to propose additional measures to end lapses on the part of individuals. Interestingly, Dr. Sharef is still photographed as one of the members of the Managing Board in the Siemens Annual Report (2006). Also, the Annual Report noted that the firm has been honored to be listed on the Dow Jones Sustainability Index (DJSI) for seventh year in a row. DJSI, launched in 1999, tracks stocks of firms in term of their economic, environmental and social criteria and assists investors who have interest in investing in firms with good sustainability practices (Dow Jones Sustainability Indexes, 2012).

In 2007, the company finally started anew and made meaningful and transparent leadership changes. The Chairman of the Supervisory Board and the President/CEO of the Company resigned. The new and the current President/CEO is Peter Loscher--a complete outsider to Siemens. Also, and probably more importantly the company created a managing board position for legal and compliance matters and hired Peter Y. Solmssen to head it. Other members of the Supervisory Board and Managing Board also departed and were replaced. Dr. Sharef continued to be member of the Managing Board. The firm also created a central helpdesk to which employees could direct compliance related questions regarding proper ethical behavior by them and their external business partners. Other changes that were made pertained to the Compliance Program with the goal of Prevent, Detect and Respond to bribery, and are listed below:

(i) Moratorium on Business Consulting Agreements, exceptions had to be approved in writing by a senior manager and Chief Compliance Officer.

(ii) Introduced new guideline regarding anti-public corruption compliance.

(iii) Created new polices regarding "retention of intermediaries who interact with the government on Siemens' behalf, compliance in M&A transactions, joint ventures and minority investments, and gifts and hospitality."

(iv) Implemented a centralization of its cash and management systems.

(v) Established a corporate Disciplinary Committee to dispense with disciplinary measures for violation of law or company policy or misconduct.

(vi) The company also adopted a global amnesty program for employees who voluntarily provided information regarding corruption. Senior Management was not eligible for amnesty.

Additionally, 1,400 senior executives were trained regarding fighting corruption and antitrust laws. The company expected another 100,000 employees to complete its web based training regarding compliance. Finally, the company requested arbitration against Government of Argentina in its ongoing litigation regarding the cancelled National Identification Program (Siemens Annual Report, 2007).

In 2008, Dr. Sharef was finally removed from the Managing Board along with five others (four had left on December 31, 2007 and one on April 30, 2008) and Siemens created history by appointing the company's first female and first Corporate Legal and Compliance officer to its

Managing Board. These changes and efforts of the new management team paid off as the company received the highest ratings possible for risk management, compliance and protection of shareholders' interest. This recognition is remarkable because Siemens had the lowest ratings for the three categories described in 2007. The new President/CEO proclaimed that our goal is to be leader in compliance and to conduct itself ethically at all times in all places (Siemens Annual Report, 2008).

In March 2008, the company introduced a comprehensive compliance control systems in designated high risk units. The high risk units were companies with large business volumes, public-sector customers and regions/locations that are particularly susceptible to corruption as identified by Transparency International. The company also upgraded the IT based process for approving customer projects particularly for public sector customers. The company also started an intranet website with compliance section where employees can find current compliance information and contacts. It is called the Help Desk, with functions such as "Tell Us, Ask Us, and Find It." The company also conducted an anonymous online survey of approximately 90,000 employees to assess employee awareness of its compliance issues and received feedback. Also, the company revamped its management structure. The company's new organizational structure has three sectors and two Cross-Sector businesses. The three new sectors are Industry, Energy, and Healthcare. The Cross-Sector businesses groups support the three sectors in finance and information technology. The bribery investigation by the DOJ/SEC and German governments ended in 2009.

As stated earlier, Dr. Sharef and others were sued individually for violating FCPA by the DOJ and SEC in December 2011. There has been no resolution of this matter as of yet.

Today, Siemens is guided by its three values: (i) Responsible--committed to ethical and responsible actions, (ii) Excellent--achieving high performance and excellent results, and (ii) Innovative--being innovative to create sustainable value (Frequently Asked Questions, 2012).

LESSONS LEARNED

There are many lessons that can be learned from the Siemens bribing experience. First, the culture of an organization plays a big role in its actions. It seemed that all managers and executives were partaking in this behavior for the longest time. The only way the world learned of Siemens bribing was due to the passage of FCPA in USA, and Germany becoming signatory to the OECD convention on bribery in 1999. Outsiders still do not know how far back bribing became a business strategy for Siemens. As some have stated, it could have been as far back as World War II.

Second, when a practice is entrenched, the only way to get rid of it is to bring in outsiders. At Siemens, effective changes began only when it hired an outsider as its President/CEO, created a new position of Legal and Compliance Officer, and selected its first female managing board member. What was galling was that while all the investigations related to bribery were on-going, Dr. Sharef continued to be part of the company's managing board for a long period of time.

Third, management tends to lie or chooses not to be forthcoming unless legally required to in their corporate documents. Siemens' Annual Reports always stated that everything was fine, They practically certified in every Annual Report that the company's risk management is adequate, that it complies with German and SOX laws and its audit reports are certified by outside auditors. If it were not true, it sounds comical. Stakeholders have to examine beyond what is told to them by managers and look beyond the shiny brochures/website and stockholders' meetings. Stakeholders should seek independent verification of statements/reports provided by managers.

Fourth, in short term, while illegal and unethical acts may seem beneficial, but almost always they end up costing the firm and the shareholders more than the benefits gained. The fines and costs related to Siemens's grafts were approximately $1.6 billion. The company never received business close to that number.

Fifth, in countries where corruption is a way of life, it still very difficult for organizations to get a fair shot at winning bids. Siemens was only one of the many major organizations worldwide who resorted to bribing to enter markets or win bids for major projects. The only way to do business for international companies in countries prone to corruption (as provided by Transparency International) is to work together to prevent corruption in accordance with the international laws (such

as OECD's anti bribery provision). Otherwise, companies that are ethical and follow laws will be unable to bid successfully. Not having a fair and transparent bidding process will ultimately hurt the consumers in those markets, whereby the product will be more costly, of lesser quality/variety and in some cases unavailable.

Sixth, and probably the most important lesson is that the quality of leaders an organization has matters. When hiring, companies should ask their potential hires questions that also pertain to ethics and decision making that requires difficult trade-offs. This is crucial because major organizations are now extremely globalized and its employees have different value systems. The results of the ethics tests should be analyzed and be part of the hiring and promotion process.

The seventh and final lesson is that companies need to be aware of changing laws and norms of the society. Thus companies should periodically update their policies and effectively disseminate them to employees at all levels. Of course, the top managers have to ensure that employees take the training and new information seriously.

CONCLUSION

The experience of Siemens shows that there are significant costs associated with bribing. Not only does the company lose its reputation but also its shareholders' incur litigation costs and wasted business opportunities. The overarching lessons for organizations are that they need to be aware of the changing social and legal norms of countries in which they conduct their business, and prepare their workforce including its senior management accordingly.

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Amod Choudhary, Lehman College, City University of New York

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