It is one of Africa's largest markets. It is also one of the largest oil and gas producing nations in the world.
No surprise then that many companies subject to the FCPA do business in Nigeria.
Problem is, Nigeria is also an incredibly challenging and complex market to do business in from an FCPA perspective.
The recent Bonny Island bribery enforcement actions (see here and here), and Panalpina's pending FCPA enforcement action (see here), which is largely focused on Nigeria, all highlight this point.
Just how challenging and complex is the Nigerian market?
Based on a report (see here) released earlier this month, incredibly so.
The report, jointly commissioned by the European Union (EU), the UN Office on Drugs and Crime, Nigeria's Economic and Financial Crimes Commission (EFCC), and the National Bureau of Statistics (NBS), was carried out in 2007 and funded by the EU at a cost of 25 million euro (US$31.2 million). It is the aggregation of results from a survey of 2,200 companies doing business across Nigeria.
Among the findings of the report, 71% of respondents answered that corruption presents a serious risk for doing business in Nigeria and the payment of bribes affects most companies operating in the country. According to the report, one in three companies reported paying a bribe to public officials in undertaking administrative tasks. According to the report, in dealing with police or clearing goods through customs, the payment of bribes is common.
Payment of bribes in connection with custom clearances is at the heart of the pending Panalpina enforcement action (as well as numerous other recent FCPA enforcement actions such as Helmerich & Payne, Inc. (see here) and Nature's Sunshine Products, Inc. (see here).
The recent Nigeria report, specifically its finding that the payment of bribes is common in clearing goods through customs, begs the questions - is this exactly the reason why Congress included a facilitation payment exception to the FCPA? If the answer if yes, then what does it say about the pending Panalpina enforcement action, the recent Helmerich & Payne and Nature's Sunshine Products enforcement actions, and the numerous other enforcement actions based in whole or in part on customs issues.
For a prior post on facilitating payments, see here.