Does Anticorruption Legislation Has Extraterritorial Application?

Does Anticorruption Legislation Has Extraterritorial Application?

Australia

Unless legislation allows for an extraterritorial reach, Australian criminal laws are generally confined to Australia and have no extraterritorial application. The extraterritorial effect of overseas bribery offenses is defined in the Criminal Code. Charges can be pursued as long as the behavior occurs partially in Australia or on board an Australian aircraft or ship. If the action takes place entirely outside of Australia and the person of interest is not an Australian company, citizen, or resident, the Commonwealth Attorney General must give his or her agreement to prosecute. 

 

Belgium

Yes, there are various theories that the Belgian criminal authorities have extraterritorial jurisdiction over corruption that occurs outside of Belgian territory. This includes cases in which the defendant is a Belgian national or resident and is located in Belgium, as well as cases in which the defendant (whether or not a Belgian national or resident) is charged with corruption of a public official in Belgium, a foreign jurisdiction, or an international organization where the target is a Belgian national, or in an international organization with its seat in Belgium. Specific conditions must be met depending on the circumstances in order for the offender to be prosecuted in Belgium. These pertain, among other factors, to the defendant’s location in Belgium and the unlawful behavior that constitutes a criminal offense in the foreign country where the conduct occurred. 

 

France

The perpetrators of an offence committed within the territory of the French Republic are subject to French criminal law as a general rule (French courts have a broad interpretation of this rule). In certain cases, French anti-corruption legislation may have extraterritorial application. In general, if specific requirements in the French Criminal Code are met, French criminal law applies to offenders who commit an offense outside of France. For example, French criminal law will apply in the following situations: The victim or the perpetrator is a French national. Both in France and in the foreign jurisdiction, the conduct committed is illegal; and The procedures were started by the French public prosecutor in response to a complaint from either the victim or a competent foreign authority. Furthermore, French criminal law applies to accomplices acting on French soil in the commission of crimes committed elsewhere, provided that: Both in France and in the foreign jurisdiction, the act is illegal; and The offence was committed, according to a final judgment in a foreign jurisdiction. Bribery and influence peddling offenses conducted overseas have been made easier to prosecute thanks to the Sapin II Act. As a result, French law may, on rare occasions, apply to: perpetrators of bribery and influence peddling offenses committed outside of France, whether the perpetrator is a French national, a French resident, or a person conducting business in France in whole or in part; and accomplices in France to acts of corruption committed outside of France, if the activities are illegal both in France and in the foreign jurisdiction. 

 

Germany

Sections 331 and following of the German Penal Code claim extraterritoriality for their anti-corruption measures if: if the offender was a German citizen at the time of the crime; or The crime is committed against a European public official or a foreign or international official, as defined under Section 335a of the Penal Code (assuming German nationality) (see. Section 5(15) of the Penal Code). 

 

Ireland

Yes. Section 11 of the Corruption Act states that a person may be tried in Ireland for any offence under the Act if one or more of the acts alleged to constitute the offence were committed in Ireland, or on an Irish ship or aircraft registered in Ireland, despite the fact that the other acts alleged to constitute the offence were committed outside the country. Irish citizens, Irish officials acting in their capacity as Irish officials, individuals with their principal residence in Ireland for the 12 months preceding the act, and companies and corporate bodies registered in Ireland are all liable under the Corruption Act for acts committed outside of Ireland if those acts would otherwise constitute certa The following are the applicable offenses: corruption, both active and passive; Influence trading, both active and passive; Corruption in relation to an Irish official’s office, employment, position, or company; giving a gift, favor, or advantage that could be utilized to enable a Corruption Act violation; and production of a fictitious financial document The condition that the act committed be an offence in the jurisdiction in which it was carried out limits the reach of its extraterritorial consequence. 

 

Switzerland

Anti-corruption legislation in Switzerland, on the whole, has no extraterritorial implications. However, the Swiss SCC’s general criteria on application apply, particularly Articles 6 and 7. The SCC applies if the following elements are met cumulatively, according to Article 6: An international convention requires Switzerland to prosecute the offense or misdemeanor. The act may also be prosecuted in the place where it was committed if no criminal law jurisdiction exists there; and The individual in question is currently residing in Switzerland and will not be extradited to a foreign country. A person is subject to the SCC, according to Article 7 of the SCC, if: Whether or not the offence is prosecutable at the scene of the crime, or whether or not there is no criminal law jurisdiction at the scene of the crime; the offender lives in Switzerland or is being extradited to Switzerland as a result of the crime; and The offence is punishable by extradition under Swiss law, yet the offender is not extradited.

UK

Yes. Both UK corporations operating abroad and foreign corporations with a presence in the UK are subject to the Bribery Act’s extraterritorial reach. Bribery, being bribed, or bribing a foreign public official can all be prosecuted if the perpetrator has a direct link to the UK. Regardless of where the bribery occurs, a firm can be held accountable under the Section 7 offence of failing to prevent bribery if it is incorporated in the United Kingdom or carries on business within the United Kingdom (regardless of where it was established). In the case of KBR v SFO (2018), the extraterritoriality of the SFO’s powers under Section 2 of the Criminal Justice Act was proved (see question 1.4). The SFO looked into allegations of corruption involving a UK subsidiary of KBR, a US-based company. The parent company does not have a presence in the United Kingdom and does not conduct business there. To compel KBR to submit documents, the SFO issued a Section 2 notice. Section 2 notifications were previously assumed to have no extraterritorial impact; however, the High Court determined that these notifications can order the disclosure of documents kept outside the United Kingdom if the recipient of the notice has a “sufficient relationship” to the UK. KBR was considered to have a sufficient link because its subsidiary’s payments required the parent company’s specific approval and were processed by the parent firm. 

 

United States of America 

The anti-bribery provisions of the FCPA can be applied both within and outside the United States. Anywhere in the world, US citizens and businesses are barred from engaging in corrupt behavior that violates the FCPA. The FCPA applies to US issuers’ activity wherever in the globe (DOJ and SEC, “A Resource Guide to the US Foreign Corrupt Practices Act,” at 12 (2012, amended 2015)).