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Tackling bribery and corruption remains high on the agenda of governments across the globe. Penalties have been increased in Belgium and elsewhere, while new legal frameworks are being developed to attain international standards, including in Thailand and Portugal. France and Germany have also seen increased enforcement activity. In Hong Kong, Indonesia and Portugal, amongst others, dedicated agencies have been established to deal specifically with corruption. Notably, the U.S., already one of the most aggressive enforcers of anti-corruption legislation, is set to extend its enforcement activities, with President Biden recently declaring the fight against global corruption to be a national security priority.
There remain jurisdictions where, despite comprehensive legislation, few or no prosecutions for foreign bribery have been brought in recent years. Indeed, countries including Italy, Luxembourg, Sweden and Portugal have been criticised by international organisations such as the OECD and Council of Europe for their low enforcement rates, even for crimes of domestic bribery. Such high-profile criticism is leading to increased efforts in these jurisdictions to ramp up enforcement activities.
There is increasing awareness across the globe that governments cannot tackle widespread corruption on their own. This has resulted in greater emphasis on requiring business organisations to shoulder the burden. An appropriate compliance programme to prevent wrongdoing can help mitigate corporate liability for corruption committed on a company’s behalf or by its employees or agents. The implementation of corporate policies and procedures to prevent corruption is being encouraged by the introduction of new corporate offences, with the UK’s model of failing to prevent bribery now being considered in Australia and elsewhere.
Deferred prosecution agreements (DPAs), once the preserve of the US legal system, have been recognised across the globe as an effective way to resolve allegations of bribery and corruption. The procedure now forms part of the judicial landscape in the UK, France, Australia and Singapore, amongst others. The use of DPAs by multiple agencies has also facilitated the resolution of large-scale, global corruption investigations - a new high was reached in 2020 in the coordinated resolution of the Airbus investigation, with disgorgement and fines totalling almost $4bn between the US, UK and France. Elsewhere, alternative options for the resolution of corruption allegations are being developed, including in the Netherlands where judicial oversight may be introduced for large-scale settlements.
The importance of whistleblowers in providing intelligence to agencies tackling corruption is increasingly being recognised, as is the need to protect individuals who come forward with disclosures of criminal conduct. To date, the protections offered to whistleblowers have not always been considered sufficient or appropriate. However, the advent of the EU Whistleblowing Directive, currently being implemented in member states across the EU, is intended to tackle those concerns. Other countries are also taking note. Even Singapore, generally perceived to be one of the least corrupt countries in the world, partly due to its zero tolerance attitude to wrongdoing, has recognised the need to improve legislation relating to whistleblowers to ensure a unified approach to the protection they are afforded.
It is widely feared that the pandemic will result in increased financial crime globally, including bribery and corruption where commercial entities have been hit by disrupted supply chains and the monitoring and surveillance of employee activities has reduced. While reports of fraud in particular have increased, enforcement authorities do not yet appear to have caught up with those committing financial crime. Several jurisdictions have reported a noticeable drop in investigations and enforcement generally, although it is likely we will see a ramping up of cases once the pandemic subsides.
A review of anti-bribery and corruption law and enforcement in 22 jurisdictions across Europe, Africa, the Americas and Asia-Pacific.
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