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From A Regulatory (preventive) And Enforcement (criminal) Standpoint, Which Legislative And Regulatory Provisions Govern Anti-corruption?


Anti-corruption and anti-bribery legislation in Australia is separated into two categories: Commonwealth laws that apply both within Australia and to some extent extraterritorially (beyond Australia), and state and territory laws that apply only inside each state and territory. This summary will concentrate on Commonwealth laws, with some references to the laws of the State of New South Wales as an example (as most other state and territory laws are similar). The Commonwealth Criminal Code Act 1995 contains anti-corruption and anti-bribery measures for the Commonwealth (Cth). The Crimes Act of 1900 contains the laws of the state of New South Wales (NSW). Foreign bribery is a crime defined under the Criminal Code. Bribery of a foreign public official by an Australian incorporated entity, citizen, or resident occurs outside of Australia. A person commits a crime if they: He or she is a provides or causes another person to receive an advantage; a person who offers or pledges to help another person; or causes another person to receive an offer or a promise of receiving a benefit; The other individual is not entitled to the benefit; and The person does so with the intent of influencing a foreign public official to obtain or retain business or to obtain or retain a business advantage that is not legitimately due to the recipient, or intended recipient, of the business advantage while the official is performing his or her duties as a foreign public official.



Public corruption is punishable in Belgium under Articles 246 to 252 of the Criminal Code, whilst private corruption is punishable under Articles 504bis and 504ter. There is no regulatory (i.e., preventive) framework in place in Belgium that lays out particular standards for businesses (or individuals) to avoid corruption. Failure to adopt effective internal compliance systems and controls to avoid corruption, on the other hand, could be used as evidence in criminal proceedings against the relevant corporation to show its intent to participate in a corruption scheme. All Belgian corporations (and other specified entities) must register their beneficial owners in this central register under anti-money laundering legislation enacted on September 18, 2017 and the Royal Decree on the operation of the UBO Register enacted on July 30, 2018. While all national registers across the European Union are planned to be interlinked in the first half of 2021, the register can be used as a screening tool to prevent corruption when conducting business with third parties.



Until recently, French law did not expressly oblige businesses to employ anti-corruption procedures. Following international organizations such as the Organisation for Economic Cooperation and Development (OECD), the Group of States Against Corruption (GRECO), and new anti-bribery law (the Sapin II Act) in December 2016, which: imposed a requirement for French corporations and corporations with a French headquarters to create a compliance program with the goal of combating corruption (if they meet specific conditions, see issue 4.1); and Established the Agence française anticorruption (AFA), a French anti-corruption body tasked with reviewing the robustness of compliance programs and enforcing punishments in the event of non-compliance. Enforcement: In both the public and private sectors, domestic and foreign, French criminal law, particularly the French Criminal Code, provides numerous provisions relating to the fight against corruption and bribery, including active and passive corruption and influence peddling. It also includes a list of related offenses, such as illegal taking of interests, theft of public funds, public official extortion (concussion), and favoritism.



In Germany, criminal law is the primary tool for combating corruption. Sections 331 through 335a of the Penal Code make accepting favors, passive corruption, providing advantages, and bribery illegal. These criminal offenses, however, are limited to corruption involving public authorities. The Penal Code’s Sections 299, 299a, and 299b govern criminal offenses including corruption in business and the healthcare system. Bribery of voters and members of parliaments (not just the Federal Parliament, but also state and local legislatures) is likewise prohibited under the Penal Code’s Sections 108b and 108e. There are few preventive, corruption-specific provisions in addition to the harsh regulatory laws outlined above. Only the public sector has standardized rules to avoid corruption. Obligations in the healthcare and private sectors are mostly organizational. Sections 81a(4) and 197a(4) of the Social Code, for example, require associations of social health insurance-accredited physicians and statutory health insurance funds to establish committees to combat misbehavior in the healthcare system. Companies are also obligated to employ anti-corruption compliance procedures under Sections 30 and 130 of the Act on Administrative Offenses.



The Criminal Justice (Corruption Offences) Act 2018 is Ireland’s main source of anti-bribery and anti-corruption law. Part 2 of the Corruption Act outlines the main corruption and bribery offenses, which include the following. Corruption, both active and passive, is defined as offering, giving, agreeing to give, requesting, accepting, obtaining, or agreeing to accept a gift, consideration, or advantage as an inducement to, or reward for, or otherwise on account of, doing an act in relation to one’s office, employment, position, or business, whether directly or indirectly. Under the 2018 act, ‘corruptly’ is generally defined as behaving with an inappropriate intention personally or by influencing another person, whether: through the use of a false or misleading statement; by obstructing, concealing, changing, or destroying a document or other piece of information; or Via some other way Trading in influence is illegal both actively and passively. It is illegal to corruptly offer, give, or agree to give a gift, consideration, or advantage in order to induce another person to exert improper influence over an official’s act in relation to the official’s office, employment, position, or business. Similarly, it is illegal to corruptly request, accept, obtain, or agree to accept a gift, consideration, or advantage for oneself or another person on the basis of a person promising or asserting the ability to improperly influence an official to do something related to his or her office, employment, position, or business. Corruption in relation to office, employment, position, or business. It is likewise illegal for an Irish official to use secret information received during the course of his or her office, employment, position, or business to earn a gift, consideration, or advantage for himself or herself, or for anyone else. Irish members of both the Irish and EU Parliaments, government officials, the judiciary, jury members, arbitrators, officers, directors, and employees of Irish public bodies, and persons remunerated by the Irish government or employed by or acting for or on behalf of the state’s public administration are all included in the definition of “Irish official.” Giving a gift, consideration, or advantage that could be used to facilitate a Corruption Act offence: It is illegal to give a gift, consideration, or advantage to another person if the person knows, or should reasonably know, that the gift, consideration, or advantage, or a portion of it, will be used to facilitate the commission of a Corruption Act offence. Creating or using a false document: It is illegal to create or use a document that the person knows or believes contains a statement that is false or misleading in a material particular with the intent of inducing another person to do something in relation to his or her office, employment, position, or business to the detriment of the last-mentioned person or another person. Threatening harm to a person, either directly or indirectly, with the goal of corruptly influencing that person or another person to do something related to his or her office, employment, position, or company is an offence. Offenses under other statutes: The following is a list of other pertinent legislation in Ireland: The Ethics in Public Office Act 1995 (as amended by the Standards in Public Office Act 2001) (together, the “Ethics Acts”) requires Irish public officials and employees to report and forfeit gifts and payments over €650. In addition, the Ethics Acts demand that designated public servants provide a written statement disclosing their financial interests. All office holders and public officials are expected to follow the fundamental principle that an offer of gifts, hospitality, or services should not be accepted if it places him or her in a position of obligation, or may appear to place him or her in a position of responsibility. Most of the rules of the fourth EU Anti-Money Laundering Directive were transferred into Irish law via the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2018. The act included a number of changes, including an expansion of the definition of persons considered to be beneficial owners of corporations, trusts, and partnerships; increased customer due diligence requirements for designated persons; a broadening of the definition of politically exposed persons to include individuals residing within the state; and a tightening of exemptions relating to the financial services industry. Lobbying in Ireland is governed under the Regulation of Lobbying Act 2015.



Bribery is punishable by seven articles of the Swiss Criminal Code (SCC). Articles 322ter and 322quater punish both active (bribery) and passive (corruption) of Swiss public authorities (the acceptance of bribes). The granting and acceptance of an undue advantage is prohibited by Articles 322quinquies and 322sexies. Corruption of foreign public officials is prohibited by Article 322septies. Articles 322octies and 322novies, which went into effect on July 1, 2016, criminalize corruption in the private sector; corruption in the private sector is prosecuted ex officio (except in cases of minor relevance). Finally, in addition to individual accountability, Article 102 of the SCC addresses corporate liability. Various soft law rules, such as International Standardisation Organisation Standard 37001, which is a flexible tool to address bribery risks in any country by any organization or company in the public or private sector, no matter how big or small, should be considered from a preventive and regulatory perspective. Anti-corruption legislation should be implemented by enterprises subject to prudential monitoring; otherwise, they risk violating their license requirements.



Conduct that occurred before to July 1, 2011 may be subject to the following penalties: Bribery and accepting a bribe are common law offenses; the Public Bodies Corrupt Practices Act 1889; the Prevention of Corruption Acts 1906 and 1916; and the Anti-Terrorism Crime and Security Act 2001 are all statutes that prohibit bribery and receiving a bribe. The Bribery Act of 2010 is now the primary legislation governing bribery and corruption in the United Kingdom. It went into effect on July 1, 2011 and applies to all businesses with a presence in the United Kingdom. Staff, intermediaries, third parties, or trading partners working on their behalf can be punished in the United Kingdom under the act for bribery perpetrated anywhere in the world. Individuals may also face charges. Promise, propose, or deliver a bribe, or request, agree to receive, or accept a bribe to assure the improper performance of a relevant duty or activity, is illegal under Sections 1 and 2 of the act. It is illegal to promise, propose, or deliver a bribe to a foreign public official in order to influence him or her and obtain or retain business or a business benefit, according to Section 6 of the legislation. A corporation is guilty of an offence under Section 7, which only applies to companies, if one of the three aforementioned acts is committed by someone acting on the corporation’s behalf. The corporation’s main defense to the charge of failing to prevent bribery is that it had “sufficient processes” in place to prevent bribery. Individuals can face a maximum of ten years in prison and/or an infinite fine under the statute. Corporations might incur a hefty fee and be excluded from bidding on governmental projects. Unless otherwise noted, we shall be referring to the new Bribery Act for the purposes of this Q&A.


United Arab Emirates

Since the 1980s, the United Arab Emirates has been battling bribery and corruption with the passage of Federal Law 3/1987, often known as the UAE Federal Penal Code, which includes Articles 234 through 239. Bribery is also prohibited under the Federal Human Resources (Federal Decree Law 11/08). The Code of 1970 and Dubai Law 37/2009 on the Procedures for the Recovery of Illegally Obtained Public and Private Funds complement the foregoing rules in Dubai.


United States of America

The Foreign Corrupt Practices Act (FCPA), enacted in 1977, prohibits foreign public officials and representatives of government-controlled businesses from bribing each other. In general, the FCPA prohibits US issuers and their agents, US corporate entities, US citizens, nationals or residents, and foreign nationals while in the US from “corruptly” paying, promising, authorizing, or offering “anything of value” to a foreign public official in order to “influence any act or decision of such foreign official in his official capacity” or to secure an improper business a transaction. Accounting rules in the FCPA compel US issuers to keep correct books, records, and accounts and to maintain internal accounting controls (15 USC 78m). Many FCPA prosecutions also involve federal money-laundering crimes, such as 18 USC 1956, which forbids sponsorship of certain illicit behavior, including as violations of domestic or foreign anti-bribery acts, among other things. Similarly, the International Travel Act of 1961 prohibits the use of US mail or interstate or international travel for the purpose of distributing proceeds or committing an act in furtherance of illegal behavior (18 USC 1952). Bribery in violation of US law, including the FCPA, is considered “unlawful action” under the Travel Act.