FCPA Compliance and Ethics Blog

May 30, 2014

Will TRACE Certify the World?

Chrisopher MarloweAaron Hernandez, formerly of New England Patriots tight end, was indicted for murder this week, allegedly killing a man for spilling his drink at a bar. But fatal disputes originating in taverns are not anything new as on this day, 501 years ago, the English playwright Christopher Marlowe, 29, was killed in a brawl over a bar tab. Marlowe was two months older than William Shakespeare. A bright student, he won scholarships to prestigious schools and earned his BA from Cambridge in 1584. While still in school, Marlowe wrote his play Tamburlaine the Great, about a 14th century shepherd who became an emperor. The blank verse drama caught on with the public, and Marlowe wrote five more plays before his death in 1593, including The Jew of Malta, Dido, Queen of Carthage and Dr. Faustus. He also published a translation of Ovid’s Elegies.

How famous was Christopher Marlowe? Marlowe heavily influenced Shakespeare himself in his work, from his reworking of Marlovian themes in Antony and Cleopatra, The Merchant of Venice, Richard II and Macbeth. In Hamlet, after meeting with the travelling actors, Hamlet requests the Player perform a speech about the Trojan War, which has an echo of Marlowe’s Dido, Queen of Carthage. In Love’s Labour’s Lost, Shakespeare brings on a character “Marcade” (three syllables) in conscious acknowledgement of Marlowe’s character “Mercury” from the Massacre at Paris. The most famous tribute to Marlowe was paid by Shakespeare in As You Like It, where he not only quotes a line from Hero and Leander (“Dead Shepherd, now I find thy saw of might, ‘Who ever loved that loved not at first sight?’”) but also gives to the clown Touchstone the words “When a man’s verses cannot be understood, nor a man’s good wit seconded with the forward child, understanding, it strikes a man more dead than a great reckoning in a little room.” This appears to be a reference to Marlowe’s murder, which involved a fight over the “Reckoning” (the bill), as well as to a line in Marlowe’s The Jew of Malta – “Infinite riches in a little room”.

I thought about Marlowe and his status as a playwright, even up to this day, when I considered something I heard Alexandra Wrage say at one of her recent talks here in Houston. She said, “TRACE wants to certify the world.” When I asked her what she meant by this she told me about the TRACE certification process. I had some familiarity with it, having seen reports from companies who had gone through the process and were presenting their certification when applying to do business as third party representatives for US or UK companies. The TRACE certification process is a detailed review, analysis and approval process that allows third parties to own and share their verified due diligence information. The TRACE certificationdue diligence reports contain a wealth of anti-bribery compliance information establishing that the candidate has been thoroughly vetted, trained and certified by TRACE. The report is packaged for the purpose of sharing verified due diligence information with an unlimited number of business partners. The TRACE certification is suitable for medium-to-higher risk relationships and involves an annual renewal requirement and a mandatory anti-bribery training course. Some of the key information contained in a report is as follows:

  • Red flags identified;
  • Comprehensive anti-bribery questionnaire;
  • Company literature collected and reviewed;
  • Business registrations;
  • Names and CVs for owners, directors, and key employees;
  • Contact information for three business references;
  • Financial reference; and
  • A signed Anti-Bribery Code of Conduct

One of the interesting things about the certification report is that TRACE calls them portable. By this, it means that once a company has gone through the TRACE certification process and receives its report, this report can be presented to other companies, which might desire to engage that third party. While there is no substitute for a company obtaining and evaluating the due diligence it receives based upon its own risk profile, the TRACE certification can be a powerful and persuasive tool to present to a company. In other words, the burden of performing due diligence is shifted away from the company to the foreign company seeking to show that they do business in compliance with anti-corruption laws, such as the Foreign Corrupt Practices Act (FCPA) or UK Bribery Act.

All of this means that going through a TRACE certification process can have benefits for both parties in the lifecycle management of third parties for a company that wants to hire a foreign company as a third party representative. First, and foremost, is the cost as it is the foreign party who pays for the TRACE certification so this shifts the cost away from the US or UK Company because it is the foreign company who seeks the certification. But more than simply the cost can be the elimination of a large part of the expense and delay associated with the vetting process. Further, the TRACE certification offers ongoing monitoring of third party relationships with daily screening of names against international sanctions and enforcement lists and can aid to simplify third party recertification process for all companies in the process, both the companies seeking third party representatives and the foreign entities seeking to represent or do business with US or UK companies on a commercial basis.

For the entity outside the US or UK that wants to demonstrate its commit to doing business in compliance with anti-bribery legislation, the TRACE certification can provide appropriately qualified intermediaries with a valuable business credential, widely recognized in the compliance community, for successfully completing the due diligence gold standard. And again it allows foreign third parties to share their verified due diligence information with all of their business partners from a company known across the globe for its commitment to anti-bribery and anti-corruption – TRACE.

So while Marlowe may not receive all of the kudos that Shakespeare does; he is certainly well thought of. For a foreign company who wants to do business with a US or UK company, you might want to head over to the TRACE website and check out their certification process. It could provide to you a true market differentiator from others that might desire to represent US or UK companies.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2014


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