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3 April 2014

Have you defined "reasonable" due diligence?

Content team

For any company entering into a new relationship with a third party or looking to undergo a merger and acquisition process, conducting due diligence will be a crucial part of the operation.

Indeed, this is not just a sensible precaution to protect a business' investment and reputation, but is also typically a legal requirement. But exactly what is needed to meet these demands may still be a matter of contention among many companies, Corporate Counsel reports.

The publication observed that the US Department of Justice, for example, recommends companies undergo "reasonable due diligence" processes in order to avoid the risk of corruption and subsequent prosecution - but it does not actually define what it means by "reasonable", which could cause headaches for many compliance officers.

Albert Li, assistant general counsel, Americas for medical device company Zimmer Holdings, told the publication that this is currently a "hot-button issue" for many companies that are working across national borders.

He explained: "Not every company has the same budget or resources or risk. So you have to come to an internal assessment of your risk and determine what is your appropriate level of reasonable due diligence."

Therefore, what may be viewed by a regulatory investigation as reasonable for one company could be seen as inadequate for another, so it will be important that organisations fully understand their position and exposure to risk when embarking on a due diligence process.

Mr Li added the tougher global regulatory environment has also made it more important for companies to take care when dealing with third parties. "A decade ago it was just the US Foreign Corrupt Practices Act. But now there's the UK Bribery Act, and Mexico and Brazil bring another layer," he said.

The fact developed countries are starting to partner more frequently on investigations and anti-corruption measures are being increasingly promoted by governments and trade associations in areas such as Latin America and Asia will only increase the pressure on businesses to get their due diligence right, he added.

Content team, Bureau van Dijk

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