Global Guide: Anti-bribery and Corruption Law and Enforcement
An understanding of the global reach of anti-bribery and corruption regulation, as well as the application of it within a specific jurisdiction, is key to managing risk for today’s international businesses. As enforcement agencies increasingly cooperate to tackle financial crime across jurisdictions, we have seen an uptick in large-scale investigations and correspondingly large penalties imposed on companies engaging in unlawful behaviour.
Linklaters’ review of anti-bribery and corruption law and enforcement across the globe will be of particular interest to businesses with international operations. For each of 22 jurisdictions it provides at-a-glance answers to eight questions:
Under what legislation are bribery and corruption unlawful in that jurisdiction?
What activities are prohibited?
In order to be unlawful, need the corrupt activities occur in whole or in part within that jurisdiction?
To whom do the rules apply?
What are the fines/penalties?
What approach is taken to enforcement in practice?
Are there any legal restrictions on dealing with financial proceeds suspected to have been procured by corruption?
What future developments are anticipated in this area?
This review is intended to highlight issues rather than to provide comprehensive advice. If you have any particular questions about bribery, corruption or foreign corrupt practices, please contact the Linklaters LLP lawyers with whom you work.
Key themes
Expanding regulation and harsher penalties
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.
But stringent legislation doesn’t always result in effective enforcement
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.
Increased emphasis on self-regulation and corporate compliance
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.
Extending use of DPAs and other settlement options
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.
Increased recognition for whistleblowers
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.
The impact of the Covid pandemic
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.
Zoom in and select a jurisdiction on the map to explore in more detail.
