Is 'facilitating payment' a bribe or not?

Published Sep 8, 2004

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At first glance, I thought it was part of a manual for executive remuneration consultants and members of remuneration committees.

But on closer inspection, I realised that a few of the terms were inappropriate in the context of executive remuneration, in particular the term "small payments".

Otherwise, much of the contents of the letter that was recently sent out by Unilever to the finance directors of all its South African suppliers had a familiar ring to it, although I had actually never heard the term "facilitating payment" before.

To recap for those who aren't committed readers of this newspaper. Last week, we carried a story about a letter sent out by Unilever to its local suppliers requesting information about any "facilitating payments" made by the suppliers on behalf of Unilever.

This huge and powerful Anglo-Dutch consumer company, which owns a large chunk of our household cleaning products as well as personal hygiene products, appears keen to extend the concept of hygiene to the running of business in a less-than-perfect world.

Unilever wants to get a handle on how much money is involved in facilitating payments and what these payments achieve.

It plans to undertake a sort of cost-benefit analysis of the issue, including "identifying the business impact of discontinuing such payments".

After which Unilever will then decide whether or not such payments will be continued. So forget about right or wrong, the outcome of this exercise will largely be determined by expediency.

Mind you, I do think this is a remarkably brave attempt by a very powerful company to come to terms with what is probably a disturbingly common part of doing business in many countries.

Although I'm quite sure that the company would prefer to deal with the matter privately and not see it discussed in the media as this gives the impression that Unilever is the only company involved in such payments.

What is probably more accurate is that Unilever is the only company that is keen to take a position on the payments.

But the fascinating aspect of this move is not only that Unilever might secure a place in the Oxford dictionary by having defined the term "facilitating payment", but that the definition would, with a few slight adjustments, fit so easily into the remuneration section of any corporate annual report.

According to Unilever, facilitating payments are "small payments made to public or other officials to expedite or secure performance of acts of a routine nature, that are part of their usual duties or functions".

So just make a few slight changes and we have "huge payments made to executives to expedite or secure performance of acts of a routine nature, that are part of their usual duties or functions".

Unilever is keen to stress that there are differences between facilitating payments, which are tolerated, and bribes, which are "absolutely forbidden".

The differences, according to Unilever, are that facilitating payments conform to widely followed local practice, and the services they facilitate are part of the normal official function of the recipient and are recorded normally in the company's books.

Now, consider these differentiating characteristics in the context of overly generous executive remuneration. Certainly, making excessive executive remuneration payments is a widely followed local practice in South Africa, the UK and the US.

In addition, the services that these remuneration payments are facilitating would certainly be regarded by most people as part of the normal function of the executive recipient.

And, after years of debate, a large part of the details of executive remuneration is now recorded normally in the company's books.

But a lawyer friend points out that there is a crucial difference between facilitating payments and executive remuneration. The recipient of the facilitating payment is a completely separate entity from the donor.

The recipient of the executive remuneration is, for all intents and purposes and with the appropriate deference to remuneration committees, indistinguishable from the donor. It is as thoug

h the briber and bribee were one and the same person.

So, what powerful player is going to send out the first letter aimed at inquiring into the real costs and benefits of excessive executive remuneration?

The major institutional investors appear too complicit to be credible and the trade unions appear not to have the will or the necessary resources.

So, for the foreseeable future, unlike the public officials, corporate executives look safe from any attack.

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