Taking Stock. A review of anti-bribery and corruption law and enforcement across the Americas, Africa, Asia-Pacific and Europe

The full report, Taking Stock. A review of anti-bribery and corruption law and enforcement across the globe is available here on Linklaters’ Client Knowledge Portal.

Bribery and corruption represent a serious risk to all organisations with international activities. The risk goes not only to financial loss but also to commercial relationships, reputation, liability and criminal exposure.

Recognising the impact of international corruption, this major comparative review considers the steps governments across the globe are taking to address bribery and corruption committed both within and outside their jurisdictions. In it we consider the position in 25 countries, with the chapters provided by 18 Linklaters offices being enhanced by chapters from our contributor firms: Allens, Webber Wentzel, TT&A, Widyawan & Partners and Bae Kim Lee LLC, to provide a truly global picture of the fight against corruption.

International focus in recent years has been on the UK Bribery Act 2010 and U.S. Foreign Corrupt Practices Act 1977, which have widely been considered to represent the “gold standard” in anti-corruption legislation. However, authorities across the globe are increasingly taking steps to address bribery and corruption committed both domestically and by their nationals overseas. The publication of reports and guidance by international organisations such as the Organisation for Economic Co-operation and Development (OECD) and Transparency International is promoting a unified approach to tackling the problem, while Directives adopted by the European Union to combat money laundering (Directive on prevention of the use of the financial system for the purposes of money laundering and terrorist financing) and better tackle the recovery of proceeds of crime (Directive 2014/42/EU on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union), are further examples of the efforts being made by different jurisdictions to work together to tackle corrupt conduct.

Other countries are adopting an equally robust approach to tackling corruption. Since we published the last edition of this review in 2012, new legislation has been proposed, and is currently undergoing enactment, in Australia and Thailand. In 2013, Mongolia initiated a reform of its criminal law system which now includes a separate chapter on crimes of corruption and Papua New Guinea plans to establish an independent body to investigate allegations of corrupt conduct. The appointments of a government investigator and a Financial Public Prosecutor in Sweden and France respectively demonstrate the efforts being made to adhere to international standards.

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). In Australia, 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.

While in many countries both public and private bribery (whether domestic or foreign) are expressly unlawful, 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 claim U.S. jurisdiction.

An understanding of the global reach of ABC law, as well as the application of it within a specific jurisdiction, is key to ensuring compliance. Linklaters’ review of anti-bribery and corruption law and enforcement will therefore be of particular interest to businesses with international operations.

This comparative review is intended to highlight issues rather than to provide comprehensive advice. For more information please contact Satindar Dogra or your usual Linklaters contact.

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