Linklaters: A review of law on Foreign Corrupt Practices in19 jurisdictions across the Americas, Asia-Pacific and Europe

A replete and very usefulreference/guide book!! Foreign corrupt practices represent a serious risk to all organisations with international ctivities. The risk goes not only to financial loss, but also to commercial relationships, reputation, liability and criminal exposure.

This publication is a quick reference guide to anti-corruption law and enforcement. For 19 jurisdictions, it provides at-a-glance answers to seven basic questions:
>>are foreign corrupt practices unlawful in this jurisdiction?
>>if so, what activities are prohibited?
>>in order to be unlawful, need such corrupt activities occur in whole or in part
within this jurisdiction?
>>to whom does the prohibition apply?
>>what are the fines/penalties?
>>what approach is taken in practice to enforcement?
>>are there any legal restrictions on a company’s ability to use or deal with the proceeds of contracts or sales which are known or suspected to have been procured by foreign corrupt practices?

International focus recently has been on the UK’s Bribery Act 2010, which came into force in July last year. Although there is yet to be a major prosecution under the new legislation, commercial organisations worldwide have been taking the opportunity to review their anti-corruption policies, spurred on in part, no doubt, by the extended jurisdiction of the UK courts under the “associated persons” provisions in the Bribery Act. Recent UK court decisions, such as those relating to engineers Mabey & Johnson and publishers Macmillian and Oxford University Press, have penalised parent companies for corrupt conduct on the part of their overseas subsidiaries, confiscating dividends received. The increasing use of anti-money laundering provisions and new proposals by the EU to extend the freezing and confiscation of proceeds of crime by national law enforcement agencies are further examples of the continuing clamp down on corrupt conduct.

Other countries are adopting an equally robust approach to tackling corruption. Since we published the last edition of “Foreign Corrupt Practices” in July 2010, new legislation has been introduced in Luxembourg and China, while proposals for the first ever dedicated anti-bribery law are being considered in Brazil. It remains the case, however, that while European regulators appear willing to investigate allegations of corruption, (an increasing number of investigations are reported to be underway in France and Sweden), the instances of successful prosecutions for foreign corrupt practices remain few and far between. Indeed, suggestions have been made from Brussels that some Central and Eastern European accession states have given up prioritising the fight against corruption altogether. As if to support this proposition, fines for bribery offences
in Poland have actually been reduced substantially since 2010.

The fight to combat corruption is a global one. The publication of reports and guidance by international organisations such as the OECD and Transparency International is promoting a unified approach to tackling the problem. However, significant differences remain locally. For example, under Thai law it is not in principle unlawful to bribe anyone (whether in Thailand or abroad) unless they are a Thai public official or if there is specific legislation applicable (as in the case of arbitrators) and in Spain private bribery is not an express offence. Although in most jurisdictions both natural and legal persons can be liable for corruption offences, in Sweden and Russia, for example, only individuals can commit a crime.

In contrast, in many other countries both public and private bribery (whether domestic or foreign) are expressly unlawful – but the tests vary widely. Therefore, in China a criminal sanction is likely to be imposed only if the corruption is found to be “serious” while in the U.S. only a slight territorial nexus (such as a phone call or email from the U.S.) may be sufficient for the Department of Justice to argue for U.S. jurisdiction. This comparative review is intended to highlight issues rather than to provide comprehensive advice. If you have any particular questions about corruption or foreign corrupt practices, please contact the Linklaters LLP lawyers with whom you work.

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