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Can Anticorruption Laws Be Used To Pursue Foreign Companies?

Australia

Yes, foreign companies can be prosecuted under Australia’s anti-corruption legislation if their directors, executives, or officers engaged in conduct with a geographic connection to Australia, or were otherwise involved in conduct outside Australia that involved an company, citizen, or resident who is Australian. The consent of the Commonwealth Attorney General is required if a foreign corporation is to be prosecuted for activity that occurred entirely outside of Australia. Unless there are rare or unusual circumstances, this consent is likely to be granted. 

 

Belgium

Yes, Belgian criminal authorities have jurisdiction over non-Belgian companies (and/or individuals) if there is a link between the alleged corruption offense(s) and Belgian territory (eg, if part of the offence was committed in Belgium, etc.). 

 

France

In cases such as the following, foreign firms may be prosecuted under French criminal law: The foreign firm has committed an offense in France; the foreign company is a co-conspirator in a crime or offence committed in France; or the foreign firm is a victim of a crime or offence perpetrated in France. The victim of the foreign company’s crime is a French national, and the crime is punished by jail in France. The implementation of French criminal law entails both the jurisdiction of French courts and the application of French legislation dealing to crime punishment and procedural norms. 

 

Germany

Section 30 of the Act on Administrative Offenses allows foreign firms to be prosecuted only if they: According to German law, the linked conduct is a criminal or administrative offense. It is relevant German criminal law or administrative offence law; and The foreign company’s legal form is similar to that of a German legal entity or association of persons. Ireland is a country in Europe. The idea of “dual criminality” is defined in the Corruption Act. Acts undertaken outside of Ireland may be prosecuted if certain links to Ireland can be proven, such as if the offence involved the corruption of an Irish official or if the individual who performed the corrupt act is an Irish citizen. 

 

Switzerland

With the exception of public authorities (since Swiss law employs the term “undertaking” as a generic phrase), Article 102, paragraphs 1 and 2 of the SCC apply to any legal body. As a result, if international corporations fail to take all necessary and reasonable compliance steps to prevent their personnel from bribing Swiss and foreign public officials, they will be held accountable. Foreign firms are only subject to Swiss law in such cross-border situations if the offence was committed in Switzerland or if the failure to adopt all necessary organizational measures occurred in Switzerland. It is not required that the company’s headquarters be located in Switzerland. Bribery money sent through Swiss bank accounts is another conceivable connection to Switzerland that could lead to Swiss jurisdiction. The SCC applies if a crime is committed in Switzerland, however the principle of “ne bis in idem” must be followed if the firm has already been prosecuted for the identical facts in another nation (Article 3 of the SCC). It is illegal to penalise a firm many times for the same behavior. Individuals are no different. 

 

UK

The Bribery Act applies to all firms and persons operating in the United Kingdom. It also covers activity that takes place outside of the United Kingdom, as long as the company or individual involved has a strong ties to the UK. A firm incorporated in the United Kingdom, a company that does business in the United Kingdom, and a foreign corporation with a UK-based subsidiary are all examples of a “close link.” Even if the bribery occurs outside the United Kingdom and the benefit or advantage to the corporation is gained outside the United Kingdom, a foreign firm that conducts any portion of its business in the United Kingdom could be prosecuted. 

 

United Arab Emirates 

Yes, if the following circumstances are met, a foreign firm can be charged for corruption: The offense was perpetrated by a public or private employee in the United Arab Emirates; or the perpetrator or victim is a UAE national. The crime took place on UAE government property. 

 

United States of America

Foreign firms that are “issuers” and use the US mail or any means or instrumentalities of interstate commerce in furtherance of a corrupt payment to a foreign official can be punished under the FCPA. Even though they are not “issuers,” they may be subject to the FCPA if they engage in any act in furtherance of a corrupt payment while on US soil (DOJ and SEC, “A Resource Guide to the US Foreign Corrupt Practices Act,” at 12 (2012, revised 2015).