AbleToTrain by Willing & Able

Is It Possible To Use The Existence Of An Anticorruption Compliance Program As A Defense To Anticorruption Charges?


The existence of an anti-corruption compliance program does not, in and of itself, offer a defense to any bribery offense, whether it is a foreign or domestic bribery offense. As previously stated, the existence of a compliance program may assist a company in persuading the investigator (the Australian Federal Police) and prosecutor that the company has a compliance culture, and that its compliance program should be considered and given significant weight in determining whether to prosecute, and if so, the extent to which any conviction and sentence will be carried out.



Demonstrating the existence of an anti-corruption compliance program can help to prove that a corporation did not intend to engage in a corruption scheme.



A thorough compliance program may be considered in the event of a criminal prosecution for corruption of a corporation, its management, or its employees. However, unlike the US Department of Justice, which has released guidelines on the evaluation of corporate compliance programs, French prosecution authorities and courts have not released any guidance on mitigating considerations.



An anti-corruption compliance program that meets the corresponding operational standards, according to popular belief, decreases liability. The reason for this is that the corporation or its management has not breached Section 130 of the Act on Administrative Offenses, which governs supervisory obligations. In practice, however, determining which supervisory actions a corporation was required to adopt retrospectively is challenging. Because corruption occurred despite the existence of a compliance program, courts and public prosecutors may assume too soon that the compliance program did not meet the company’s operational requirements and so did not serve to lessen responsibility. However, such a finding is not possible because the assessment must be based on a fake perspective prior to the act of corruption. If the anti-corruption compliance program meets the operational requirements under a hypothetical “ex ante” scenario, the fact that corruption occurs should not influence the compliance system’s ability to decrease liability. A corporation will not be held accountable if it has an appropriate compliance procedure. If culpability is established in a specific case, the existence of a compliance system program may have the beneficial consequence of lowering the fine. However, there is no guarantee that the situation will be handled properly.



As previously stated, it is a defense for the body corporate to show that it took all reasonable efforts and used all due diligence to prevent the offence from being committed. While having an adequate anti-corruption policy in place is not a defense in and of itself, it may assist a body corporate in demonstrating that it took reasonable effort to prevent the conduct of the offence. If the corporation is prosecuted and the foregoing defense is used, the corporation’s anti-corruption policies and processes are likely to be scrutinized closely.



Because companies can be held liable if they do not take all reasonable organizational measures required to prevent bribery under the Swiss Criminal Code (SCC), it is recommended that companies implement and enforce compliance measures as a precautionary defense to corporate liability and to reduce the risk of criminal liability as much as possible. The court is not obligated to consider such measures, especially if it determines that compliance measures were not adequately implemented. However, if the safeguards were appropriate and effectively executed, the corporation may avoid criminal culpability. Internal norms and codes of behavior, employee training, and the development of whistleblowing hotlines are all common actions taken in this respect. The Swiss Code of Best Practice for Corporate Governance was issued by economiesuisse to provide advice and direction to businesses.



If a firm is accused with failing to prevent bribery under Section 7 of the Bribery Act 2010, having an existing anti-corruption compliance program is a defense. The corporation will have to show that it had proper procedures in place to prevent employees from behaving in a corrupt manner. However, Skansen demonstrates how high the bar is placed for what constitutes adequate practices.


United States of America

A compliance program will not absolve a company of guilt for bribery, but it may serve as a mitigating factor in considering whether or not to prosecute and how to resolve a case. In corporate settlements, the quality of the compliance program can influence the type of settlement (i.e., non-prosecution agreement, deferred prosecution agreement, or guilty plea), the amount of the financial penalty, and the type of remedial requirements, such as whether an independent compliance monitor is required, among other things. The Department of Justice and the Securities and Exchange Commission (DOJ and SEC), “A Resource Guide to the US Foreign Corrupt Practices Act,” at 53 (2012, updated 2015); FCPA Corporate Enforcement Policy, March 2019) have released guidance to address the hallmarks of an effective compliance program.