Are there any planned developments or reforms of bribery and anti-corruption laws in your jurisdiction?
Bribery & Corruption (2nd edition)
Currently, the foreseeable developments will still mainly be concentrated on the new Supervision Law promulgated in March 2018, and the Anti-Unfair Competition Law amended in November 2017, as well as the corresponding synchronization among all the relevant laws and regulations. New legislations associated with this regard are also anticipated to address the potential issues arising during the implementation.
Of paramount importance, is the establishment of the Supervisory Commission and revolution of organization restructure in the State Council which leads to the new work divisions among all the regulatory bodies. The recently established the Administration for Market Regulation (“AMR”) now handles the investigations on administrative violations of commercial bribery not involving state functionaries and the Public Security Bureau (“PSB”) handles the investigations on criminal violations of bribery not involving state functionaries. In parallel, investigations on both administrative and criminal violations of bribery involving state functionaries then fall into the hands of the Supervisory Commission. All of these changes may bring about new developments of bribery and anti-corruption laws for the issues arising from the enforcement actions in practice.
Since the impact of the Sapin II Act has not yet been finally assessed, no significant reforms to bribery laws in France are planned for now. However, the government displays a strong will to tackle the challenge of bribery and corruption, in particular to have a handle over cases related to France, as already specified above (see 16).
It is worth noting that some legal practitioners have been calling for a French Deferred Prosecution Agreement applicable to individuals, as the CJIP only exists for legal persons, and the existing equivalent for natural persons – summons to appear in court on the basis of a plea bargain, CRPC- requires an admission of guilt from the defendant.
Currently, there are no specific developments planned since there has recently been a significant change of laws as a result of a heated public debate in recent years. In 2016, sections 299a and 299b of the Criminal Code were introduced following a judgment by the Federal Court of Justice (Bundesgerichtshof). The goal of these changes is to prevent doctors being bribed in relation to the prescription of medicines. There have been occurrences in the past of some pharmaceutical companies offering doctors ‘bonuses’ for prescribing a certain amount of their medicines. As a result, the scope of section 299 of the Criminal Code was extended.
In 2017 sections 265c and 265d regarding sports-related betting and the manipulation of professional sports competitions were added to the Criminal Code. Section 331 was extended to regulate the offering and receiving of bribes in relation to EU delegates.
In the past there have been futile talks regarding the introduction of a Criminal Code for corporate entities. First drafts have been presented, discussions have ensued and as a result, a German Criminal Code for corporate entities could be passed in the next couple of years.
The core legal framework for corruption offences and related acts (money laundering, tax regulation) has been reformed repeatedly in the last years. The provisions for punishable acts, sanctions, fines and procedure have been amended 5 times from 2102 and on, with last amendment having been introduced in December 2018. A series of amendments has also taken place in taxation laws and accounting regulations in order to comply with the anti-corruption and anti-money laundering regulations.
The General Scheme of the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Bill 2019 was approved by the Irish government on 3 January 2019. When enacted, this will transpose many of the provisions of the Fifth EU Money Laundering Directive, which aims to strengthen EU money laundering and terrorist financing laws.
Although at the moment there is not a substantial reform project which addresses the issue at a global level and is likely to see the light in the very near future, it has to be noted that the recent Law no. 3, dated 9th January 2019 has brought significant modifications to the regulation on bribery and corruption. As mentioned above, the said law provided for a general toughening of penalties (duration of imprisonment and disqualifying measures, amount of fines) for bribery offences and introduced measures to strengthen the fight against corruption, also with regard to criminal investigations. For instance, the discipline of police operations under cover has been extended to certain bribery offences; in proceedings for crimes committed against the public administration, the use of wiretapping is always permitted, also by means of electronic devices.
Among the measures to tackle bribery, a ground for exemption has also been introduced for those who collaborate with the justice system, provided that there is a spontaneous confession by the involved person before he/she is informed of the investigations against him/her and in any case within four months of the commission of the crime. Besides, some relevant provisions of the Criminal Code have been modified to provide for the possibility of prosecuting Italian or foreign citizens who commit certain bribery offences abroad, without the need for a request from the Minister of Justice, or in the absence of a report filed by a third party.
Furthermore, the reform modified also the Legislative Decree no. 231, dated 8th June 2001:
- increasing the duration of the disqualifying measures for the corporation in case of commission of bribery and corruption offences;
- introducing some leniency provisions with regard to bribery and corruption offences;
- adding to the catalogue of relevant crimes for corporations the offence of ‘undue influence peddling’ (art. 346 bis of the Criminal Code). The offence of undue influence peddling punishes with imprisonment from one to four years and six months anyone who, exploiting or boasting existing or alleged relationships with a public official, unduly causes money or other benefits to be given or promised to him/her or others as the price of his/her own illicit mediation with a public official or to remunerate the latter in relation to the exercise of his/her functions or powers.
A new Criminal Code is in the making, but has not yet been voted in the Belgian Parliament. However, no major changes regarding private corruption are expected.
There are no specific planned developments or reforms of bribery and anti-corruption such as passing a new statute or amendment of the relevant laws. However, the plea-bargaining system can be expected to be applied actively in bribery cases as stated in Answer 16.
There have not been any recent proposed legislative amendments that affect the bribery and anti- corruption laws. However, the National Government on 19th January 2018, issued a Draft Medium-Term Policy Statement, which championed “the Big Four Agenda”. The Big Four Agenda proposes entrenchment of structural reforms with the Government continuing to strengthen various institutions that are mandated to fight corruption in the Country, implement reforms on good governance and enhance the capacity to recover corruptly acquired assets. It is expected that in achieving the Government’s policies under the Big Four Agenda, several enabling- laws are likely to be proposed in line with the Kenyan Anti-Corruption agency’s strategic plan to lobby for strengthening of policy, legal and regulatory framework by reviewing and proposing new laws, amendments and regulations; and particularly the national ethics and anticorruption policy which the Agency has sought to finalize. The Anti-Corruption Agency has published its Strategic Plan 2018- 2023 and proposed a strategy for law reform indicating the intention to enact new regulations each year from 2019 to 2023.
The DOJ recently released the FCPA Corporate Enforcement Policy in November 2017. While the policy does not reform the FCPA, it updates the DOJ’s stated approach to enforcement. Among other things, the policy sets forth the circumstances under which the DOJ will decline to bring charges against a corporate entity.
Earlier this year, the Mexican Congress amended the CPEUM in order to include corruption offences as a major crime, with preventive custody and no right to bail. Such amendment to the CPEUM was one of AMLO’s promises in his government’s inauguration ceremony.
Other than the foregoing, there are no planned major reforms to the Mexican anti-corruption laws. However, the local governments are in the process, and are obliged to implement and enact equivalent local regulation to be consistent with the relevant SNA regulatory framework.
Additionally, according to information recently released by official sources, the federal government is preparing an Anti-Bribery Protocol, which has the purpose of coordinating the participation of all federal government entities involved in the prevention, detection, investigation and sanction of transnational bribery. Such initiative is part of Mexico’s efforts to comply with the provisions of the OECD Anti-Bribery Convention and will target the solution of jurisdiction and extraterritoriality problems, the administrative and criminal liability of legal persons, the exchange of information between authorities and the improvement of the Mexican government’s mechanisms for international cooperation.
There is a vast number of bills under review and analysis of the Brazilian Congress.
There is no planned reform within the coming year. The New Zealand Government has signalled possible reform in the area of mutual assistance in criminal matters and extradition law, although this project is likely to take considerable time and work and this area has not been the subject of any public consultation.
Not at this point in time.
At present, in the legislative procedure carried out in the Parliament of Romania there is a law project which concerns, inter alia, the modification of the Law no. 78/2000 on the prevention, detection and sanctioning of corruption acts. This law project was adopted by the Senate on 17.04.2019 and provides the abolishment of the provisions of Art. 132 regarding the incrimination of the aggravated form of the crime of abuse of power, when the clerk sought to obtain an undue advantage for himself or for another.
As discussed above, the Criminal Justice Reform Act (CJRA) which was passed by Parliament on 19 March 2018 introduced the option of Deferred Prosecution Agreements (DPA) in Singapore. A DPA is a voluntary alternative in which a prosecutor agrees to grant amnesty in exchange for a defendant agreeing to fulfil certain requirements and specific conditions, such as, for example, implementing compliance programmes, and/or co-operating in investigations into wrongdoing by individuals.
The introduction of DPAs in Singapore may be an indication of an increased focus on corporate entities by the Singapore government. This is since the Singapore Ministry of Law stated that the DPAs serve two main purposes – to encourage corporate reform to prevent future offending, and facilitate investigations into wrongdoing both by the company and by individuals. Corporations who wish to engage in DPA discussions must be represented by lawyers under the law.
Given Singapore’s status as a key commerce and financial hub in Asia with a strong rule of law, continuing reforms to Singapore's anti-bribery and corruption laws are bound to be contemplated. The corruption case involving Keppel Offshore & Marine highlights such a need given the transnational nature of both inbound and outbound business for local and foreign companies in Singapore.
Switzerland has recently overhauled its anti-bribery provisions, incorporating the provisions against bribery in the private sector into the Criminal Code (instead of the Unfair Competition Act, as was previously the case). There are no immediate plans to revise the anti-corruption laws at this time.
The current implementation of anti-money laundering provisions by Switzerland were subject to a regular international review by the FATF, resulting in an enhanced follow-up process. Switzerland has revised FINMA's Money Laundering Ordinance, introducing in particular tougher rules on the verification of beneficial owners, ensuring that client relationship information is regularly updated, and expanding the scope of the rules applicable to relations with increased risks and to the group-wide observation of anti-money laundering principles. Further, the Anti-Money-Laundering Act is being revised, with the aim of introducing stricter rules in connection with establishing and administrating corporations as well as the verification of beneficial ownership and client information.
As mentioned (question 14 and 16), the Swiss government further plans to revise the employment law, formalizing the existing rules on whistle-blowing, and the OAG is proposing the introduction of deferred prosecution agreements.
Further, the laws governing public procurement is currently being overhauled, aiming at further harmonizing the various existing federal and cantonal laws, as well as implementing the requirements of the revised WTO Government Procurement Agreement. One pillar of the pending revision is the introduction of tighter rules preventing bribery and corruption in public procurement.
The are no immediate known plans to changes the UK's bribery and anti-corruption legislation. However, in 2017 the UK government published its Anti-Corruption Strategy 2017 to 2022, setting out a number of executive initiatives to tackle domestic and international corruption. This includes, for example, a commitment to prioritise anti-corruption provisions in any future trade agreements. Moreover, in May 2019, the House of Lords' Select Committee on the Bribery Act 2010 published a number of recommendation for amendments or clarifications in relation to the Act. The overall response of the Government was mainly neutral, and it is therefore unclear whether many changes to the law will be made on the back of the Committee's recommendations.
It is expected that prosecutorial resources will be dedicated to the use of remediation agreements and, by extension, that organizations involved in allegations of bribery will similarly focus on this new tool.
There is no ongoing legislative process, but there is a regular attempt on create the so called crime of unjustified wellness, taking the burden of proof to the defendant instead of the prosecutor.
The current Administration has recently sent to Congress a new Criminal Code Project Bill, which introduces multiple reforms, such as criminalizing commercial bribery, both for individuals and legal persons, expanding the corporate criminal liability regime established by Law 27,401 to all corruption, economic, fraud, and competition offenses, raising the penalties for corruption offenses, and expanding non-conviction based forfeiture.
There is a new Criminal Code recently approved but we are still waiting for the publication of the Code. Also, we are aware that a new Criminal Procedure Code is under execution. Both the Criminal Code and the Criminal Procedure Code are out of date because they have been approved in 1886 and 1929, respectively.