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Overview Of Your Jurisdiction’s Present Anti-corruption Enforcement Landscape And Current Trends – Expected Legislative Revisions

Australia

Anti-corruption and bribery investigations and prosecutions are likely to continue to increase in Australia. While whistleblower protections have increased significantly, the government’s general attitude still appears to be to pursue people who report unethical or illegal government behavior. This provides a confusing message to whistleblowers, who are told they will be protected if they uncover corporate wrongdoing, but will be pursued, probed, prosecuted, and convicted if they expose public wrongdoing. Companies are, however, increasingly taking proactive measures to guarantee that they have a solid, proactive compliance culture, frequently as a result of international enforcement developments, as the risks of not doing so are increasingly recognized as unsustainable. Legislative change is long overdue and should be implemented as soon as possible by the Australian government. improvements to make overseas bribery offenses more straightforward; enactment of the corporate crime of failing to prevent foreign bribery; and The Commonwealth DPA program was enacted.

 

Belgium

The College of Public Prosecutors made steps in 2015 to boost the focus on the fight against corruption, including issuing a circular that tries to make corruption prosecution a priority. Furthermore, the Belgian government stated in 2017 that it intends to increase the number of specialized investigators and prosecutors in order to tackle economic and financial crime, including corruption. Although no objective evidence to corroborate this is publicly available, we have noticed an upsurge in the prosecution of corruption cases in our practice. This tendency is expected to continue in the future. From a legislative standpoint, the Belgian government may soon consider the necessity to enact anti-corruption regulatory (and preventive) legislation akin to France’s Sapin II Act.

 

France

When law enforcement agents determine that a crime of corruption has been committed, French law does not offer for any alternative to criminal prosecution. A criminal prosecution may result in a settlement, a guilty plea, or a trial through the settlement procedure.

 

Germany

It is difficult for the German judiciary to successfully combat corruption. This is due, in part, to a lack of court resources to deal with these often-complex situations. In recent years, the criminal legislation governing corruption has undergone many adjustments. It’s impossible to say whether or not there will be more adjustments in the near future. On the basis of the Directive on the Fight Against Fraud Affecting the Union’s Financial Interests, for example, modifications to Sections 331 and following of the Penal Code may be required. Furthermore, due to the broad nature of various corruption offenses, legal constraints are being considered. The implementation of a self-reporting system exempting corruption offenses, as well as a corruption amnesty, are among the proposals. It’s also feasible that the legal framework for imposing sanctions on businesses will alter in the near future. The parties agreed to expand the administrative offence law in the coalition agreement for the 18th legislative term. It is envisaged that, in the future, firms would not be held solely accountable for management personnel’s breaches of supervisory duties, but that direct corporate liability would be implemented. On the basis of a recently published draft EU directive on whistleblower protection, Germany is likely to harmonize the level of protection provided to anonymous whistleblowers with EU criteria in the medium term. Whistleblowers are expected to reveal legal infractions such as corruption in greater numbers as a result.

 

Ireland

The Corruption Act is part of a package of reforms announced by the Irish government in November 2017 to improve corporate governance, transparency, and the country’s response to white collar crime. Other elements of the government’s planned white collar crime reform package include: replacing the current Office of the Director of Corporate Enforcement with the Corporate Enforcement Authority (ODCE). On December 4, 2018, the General Scheme of the Companies (Corporate Enforcement Authority) Bill 2018 was published; under the proposed legislation, the ODCE will take the form of a commission, rather than its current structure as an office within the Department of Business, Enterprise and Innovation, with the goal of giving the organization more autonomy. To combat white collar crime, the Irish police department is piloting a Joint Agency Task Force; and developing the Criminal Procedure Bill, which, if passed, is expected to simplify criminal procedures and improve the efficiency of criminal proceedings. In addition, the Irish Law Reform Commission published a report on Regulatory Powers and Corporate Offenses in October 2018. The following are some of the suggestions: that a statutory Corporate Crime Agency with adequate resources be established; that economic regulators have the authority to inflict severe financial penalties and enter into regulatory enforcement agreements, including restitution programs; and a suggestion for reforming fraud laws to combat egregiously risky behavior While there has been little in the way of investigating or enforcing bribery and corruption in Ireland in the past, given the increased government focus on white collar crime and the increased focus among regulators in relation to investigations and enforcement in Ireland in general, one expects this to change in the near future.

 

Switzerland

The Swiss Parliament is debating whether to extend whistleblower protection to the country’s labor and criminal laws. Employees would be able to report suspicious irregularities without fear of breaching their duty to the firm, which could result in civil and criminal consequences. This legislative initiative should be closely followed. The Attorney General’s Office has also recommended the adoption of a deferred prosecution agreement, similar to those used in the United States, under which procedures might be settled outside of court if the accused cooperates fully with authorities. If the accused agrees to comply, increase compliance standards, and, for example, agrees to the recruitment of independent monitors, the prosecution authority will temporarily forego an indictment. Another issue is the prosecution of corporations by the Attorney General’s Office, which has indicated that it will routinely examine and prosecute corporate criminal culpability. Meanwhile, if voters approve the Responsible Business Initiative, a new Article 101a will be added to the Swiss Federal Constitution, imposing additional legal obligations on companies with a registered office, central administration, or principal place of business in Switzerland in the areas of human rights and environmental affairs (see question 3.5). In 2020, a vote is expected.

 

UK

It will be interesting to observe if deferred prosecution agreements (DPAs) are increasingly used to wrap up bribery investigations. The Serious Fraud Office (SFO) has stated that it is seeking stronger corporate collaboration and wants investigations to be completed more quickly, potentially leading to more DPAs. It would be surprising if there were any significant legislative changes. The Bribery Act of 2010 is recognized internationally as the most comprehensive and far-reaching piece of anti-bribery and corruption legislation, according to the House of Lords Select Committee on the Bribery Act of 2010. The committee’s recommendation that the government provide greater compliance guidance to small and medium-sized businesses may persuade the government to do so. The committee’s claim that there is a lack of coordination between the Crown Prosecution Service, the Serious Fraud Office, the National Crime Agency, and other agencies may lead to this being remedied, resulting in faster prosecution judgments. However, the United Kingdom currently has legislation in place that is unlikely to be significantly changed in the foreseeable future. The only changes we’re likely to see are in how law enforcement agencies employ the tools at their disposal. With the use of DPAs and new SFO Director Lisa Osofsky (an American) indicating her willingness to introduce the use of informants and covert human intelligence sources, current anti-corruption enforcement appears to be following a more US-style approach. In doing so, Osofsky is following in the footsteps of the United States, where the deployment of wiretaps and informants is commonplace. The SFO is also increasingly relying on artificial intelligence tools and forensic computing capabilities to evaluate electronic documents. Strict liability offenses appear to be on the rise. A firm, partnership, or other ‘legal entity’ commits an offence if it fails to take reasonable precautions to prevent an employee or related person from enabling tax evasion, according to Part 3 of the Criminal Finances Act 2017. The possibility of extending strict responsibility to an offence of failure to prevent financial crime, which might include a wide range of offenses, is being considered. However, this is not expected to happen anytime soon.

 

United Arab Emirates

The United Arab Emirates takes anti-corruption enforcement very seriously, as indicated in question 4.1, in both the public and private sectors, and against both companies and individuals. Individuals and businesses alike are motivated to avoid bribery and corruption by the very real and serious prospect of imprisonment and fines. In terms of anti-corruption law, no significant changes are expected in the coming 12 months. However, the Federal Penal Code was recently changed to expand the coverage of bribery and corruption, and new developments in the fight against bribery and corruption are revealed on a regular basis.

 

United States of America

In the enforcement of the Foreign Corrupt Practices Act (FCPA), a few current themes have emerged: Increased incentives to cooperate: The Department of Justice’s (DOJ) FCPA Corporate Enforcement Policy, announced in November 2017 and amended in March 2019, is the most significant recent reform in FCPA enforcement. If no aggravating conditions exist and corporate entities give full cooperation, including voluntary self-disclosure and prompt and adequate remedy, among other factors, the policy establishes a presumption of decline. If the DOJ believes that declination is appropriate, the corporate entity must nevertheless pay disgorgement, forfeiture, and/or restitution. If a corporate entity does not meet all of the criteria for declination, the policy allows the business to get a 50% reduction in criminal fines and avoid the appointment of an independent compliance monitor. Multijurisdictional enforcement and investigations: The Department of Justice and the Securities and Exchange Commission work closely together on investigations and enforcement actions, not just among themselves but also with foreign governments. There has been more collaboration between jurisdictions as other nations have introduced anti-bribery laws and/or intensified enforcement of anti-corruption laws. Individual accountability and liability: The US government continues to emphasize that FCPA crimes are the responsibility of individuals, not just corporations. Individuals have been charged criminally for their roles in bribery breaches in many recent enforcement proceedings against corporate entities. In 2019, a bipartisan group of politicians introduced the Foreign Extortion Prevention Act, which would make it illegal for foreign authorities to demand or accept bribe payments.