Compliance / Regulatory

Any organization, for profit or non-profit, can miss out on a lot of (business) opportunities, chances or even be materially held liable if they don’t get compliance right, that means, if they don’t take appropriate measures to ensure that applicable rules (laws, regulatory standards and self-regulatory guidelines) are being observed, upcoming new regulation is being monitored and a program is established to prevent illegal actions.

Moreover, executive compensation including severance payments are increasingly impacted by compliance risks and claims for damages as well as by the corresponding accruals that are to be created on the balance sheet.

Small and medium-sized organizations including start-up companies can – and considering the increasing cyber attacks also targeting SMEs – have to adopt appropriate defense strategies, too, considering their size and scope of activities, in particular such as industry sector as well as business exposure in foreign countries, etc. Also for the public sector compliance will gain relevance.

At the core, compliance is a leadership question. A strong risk culture including ethical considerations is key. Board of directors and senior management have to take the lead and lead by example. SME’s, often lead by founders, too, have to foster a strong feedback culture, that encourages critical feedback from employees.

Legal risk management, ethics, compliance and regulatory require an interdisciplinary organization-wide team approach and strategic leadership that starts when developing new products and services.

This even more so, considering digitization and the use of artificial intelligence.

This includes considering compliance as part of the incentive program. Also, managing competition between coworkers, that can lead to unethical behaviour, in a fair way and designing reasonable bonus programs, without focus on comparison but rather on a long-term perspective instead of short-term benefits, is crucial as well.

Considering the growing demand, outside independent legal leadership can help control costs and reallocate resources and identify processes that are not well run and find appropriate solutions.

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Services include:

Compliance Management System (CMS)/compliance program
  • Advice on the design, implementation and monitoring and improvement of appropriate, customised compliance management systems (CMS) based on the evaluation of existing controls as well as on a legal risks strategy and compliance goals (compliance management system gap analysis legal project leadership).
  • Compliance monitorships in my practice areas as well as regarding basic cultural and ethical aspects including leadership change aspects.
  • Advice includes legal (project) leadership on the development of a compliance program including:
    • board compliance oversight leadership duties (see practice area “Board Services”),
    • compliance organization (delegation of duties and responsibilities, allocation of resources, coordination with other functions, application of embedded compliance/the lines of defense concept),
    • implementation plan,
    • evaluation of technical resources,
    • communication including employee training and incentives plan,
    • continuous (risk) monitoring and evaluation processes,
    • audit and reporting system,
    • evaluation and improvement of processes.
  • Based on the organization’s scope of activity, a comparison against global best practices such as standards from national and international key authorities is part of an evaluation, including e.g.:
    • World Bank
    • OECD
    • Council of Europe
    • European Commission
    • U.S. DOJ/U.S. FCPA DPAs
    • U.S. Sentencing Guidelines
    • SEC
    • UK Bribery Act
    • ISO 19600 Compliance
    • ISO 37001 Anti Bribery Management
    • IDW PS 980
    • Basel Committee on Banking Supervision, FINMA
    • Further best practices and rules established within particular industries as well as by courts and Attorney General’s Offices
    • Human Rights compliance etc.
Risk assessment
  • Providing legal (project) leadership on compliance legal risk analysis (identification and evaluation).
  • Identification and assessment of relevant processes.
  • Designing of risk strategy, compliance goals considering the organization’s values and ethical aspects in general in view of a general framework for a tailormade compliance program.
Policies, standards, procedures
  • Reviewing, drafting and designing of policies (programs) and (business conduct) guidelines including all organizational rules, duties and responsibilities.
  • Defining implementation plans for corporate compliance and policy standards and procedures.
  • Drafting of employment agreements and job descriptions for compliance officers as well as for compliance duties and responsibilities of other employees or management functions.
  • Subject matter expertise include in particular the practice areas, e.g. (see practice areas descriptions):
    • Business conduct areas such as conflicts of interest, conduct in general, company information etc.
    • All corporate related and M&A compliance issues (precautions to protect buyers from insufficient compliance structures and past misconducts including potential fines and impact on turnover and earnings).
    • Financial services/institutions regulation compliance.
    • Listed companies duties and responsibilities compliance.
    • Third party and general contracts related due diligence assessments.
    • Labor law including employee due diligence assessments.
    • Data protection and privacy issues and regulation.
    • Coordinating and supervising the implementation of other policy areas in collaboration with technical and/or foreign experts such as bribery laws, anti-trust/competition law, international trade, EHS, industry related regulation etc.
Communication, prevention
  • Advice on internal and external compliance communication plan.
  • Employee information and training programs. Providing of tailormade trainings in the practice areas as well as supervising the implementation of further education measures including regular updates also regarding new types of cyber attacks (CEO fraud etc.).
  • Advice on designing of employee incentives agreements considering compliance duties and responsibilities.
  • Advice on the implementation of an appropriate, diverse contact system for employees and business partners seeking guidance regarding or reporting conduct issues including whistleblower contact organization and serving as external ombudsperson as well as on the rights and duties and responsibilities regarding the whistleblowing procedures (e.g. data protection obligations, privacy impact assessment, PIA).
Monitoring, documentation, reporting
  • Advice on the monitoring and documentation of preventative compliance measures.
  • Designing of appropriate organizational structures and audit, record keeping and reporting schemes and templates etc.
  • Advice on the monitoring of internal investigations and the impact of various applicable regulation and structuring of crisis management plans and processes.
  • Advice on attorney-client privilege and other aspects considering the coordination of various compliance roles and functions and respective frameworks.
Evaluation, improvement
  • Advice on the development of a structured gap analysis.
  • Advice on the establishment of an audit tracking system to ensure supervision of corrective actions including periodic improvement of the compliance program considering also newly emerging benchmarking standards and decisions.

Illustrative reference transactions, competencies and achievements include:

Education and training events
  • Education of and organization of training event for team members from various foreign legal backgrounds on Swiss legal AML/client onboarding rules and regulations.
  • Founder of two in-house General Counsel event networks on leadership, corporate governance and legal (risk) management/compliance, corporate social responsibility (CSR) topics (founder, chairwoman, program, opening speeches, panel moderation etc.; approx. 350 associated colleagues). Past events topics (for more information see “Events”):
    • Diplomatic Challenges For Switzerland: What Kind of Global Leadership Competencies Will Companies Need in the Future
    • Corporate Human Rights Compliance
    • Activating Teams And Leading Them to High Performance
    • Compliance Investigations
  • Participated in the event of the British Swiss Chamber of Commerce on the topic “Dealing with Corruption and Bribery Risks” (for more information see “Events”).
  • In-house presentations and support of training events and employees in connection with compliance updates (e.g. regarding anti-trust/competition law and insider dealings etc.).
Development of services portfolio including compliance services
  • Implementation of an in-house legal counsel service portfolio for the Swiss market: Strategic consulting, legal (risk) management, compliance, records management, legal spend and matter management, outsourcing, e-learning, audits, assessments.

Major general projects and illustrative cases (see also other practice areas):

  • Support Head of Global PEP (Politically Exposed Person) Desk of a large multinational bank (4+ months)
    • Support various projects and initiatives to improve existing controls around business relationship with PEPs (e.g. review of PEP Manual and intranet documentation/instructions etc.).
    • Support Global PEP Desk in maintaining integrity of PEP data within the framework of new regulatory requirements (e.g. update identification of Special Focus Clients [in view of risk scoring measures], Domestic PEPs and various Foreign PEP populations, evaluation and integration of feedback from various internal initiatives etc.).
    • Support Global PEP Desk in view of advice to relationship managers as well as to senior management regarding reporting, regulatory and audit requests relating to business relationships with PEPs.
    • Support Global PEP Desk in connection with assessments of PEPs.
  • Team Lead of a highly diverse 30 person Axiom team on a confidential internal review project at a large multinational bank (18 months) In parallel with the function as: Team Lead of 15+ person mixed team from various services firms (team leadership duties see practice areas “General Counsel Services” and “Project and Crisis Management”):
    • Scope of review: Analysis of data and documents relating e.g. to the account opening as well as multilingual investigations of client files. Writing case reports to provide information in response of legal regulatory inquiries, to meet FATCA/Withholding Tax requirements, cross-border and KYC obligations and to compliance. Assess and correct first level review results and provide feedback to reviewers.
    • Supervising reviews answering questions regarding the application of review protocols and the assessment of documents relating to financial services (products) and the background of related regulation.
    • Update briefings relating to review aspects and collecting feedback regarding new issues.
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  • Reviewed numerous Code of Conducts of companies from various industry sectors.
  • Advised on business records retention.
  • Advised on HR governance concept regarding the personnel management.
  • Advised on legal framework regarding preventive compliance measures and internal investigations.
  • Advised on the integration of compliance and ethics aspects as part of annual employee evaluations and remuneration.
  • Advised on employees’ reporting and notification duties and responsibilities.
  • Advised on the handling of workplace misconduct cases.
  • Advised on implementing of new requirements from insurance companies regarding environmental, health and safety (EHS) criteria of an industrial company in collaboration with EHS officers.
  • Advised on the coordination of compliance requirements with customers, clients and service providers etc.
  • Advised on the handling of various conflicts of interest situations in corporate decision-making.
  • Advised on 100+ due diligence activities, M&A agreements and capital markets transactions including on all compliance aspects.
  • Drafting of leak contingency plans in connection with envisaged capital markets and corporate transactions to ensure adherence to ad hoc publication duties and responsibilities.
  • Helped develop an international legal risk management program.
  • Participated in decision-making process for and development of compliance-related technology (case and contract management, hotline reporting, interactive e-learning programs).