Are there any planned developments or reforms of bribery and anti-corruption laws in your jurisdiction?
Bribery & Corruption
In early December 2017, the Australian government introduced two bills into federal parliament which if passed, will:
- expand and clarify the scope of Australia's foreign bribery offences (including relating to the scope of what constitutes bribery, the intention behind illegitimate payments or offers of payments, and what matters a court should and should not take into account when determining if an offence is made out);
- create the offence of corporate criminal liability in relation to foreign bribery unless the company can establish that it had 'adequate procedures' in place. The bill is framed identically to the UK Bribery Act equivalent, though the Government has not yet released draft or final guidance on what matters will be considered in the 'adequate procedures' defence;
- introduce a proposed DPA scheme which would apply to foreign bribery, bribery of federal public officials and other identified federal crimes; and
- consolidate and expand existing private sector whistleblowing laws and strengthen protections for private sector whistleblowers (as referred to in the response to question 14) at the federal level.
Significant changes to the anti-corruption legislation are about to be introduced by means of two draft Acts currently at the stage of being finalised. The date of entry into force of both Acts has not yet been determined, but they are expected to be enacted within a few months and enter into force during 2018.
The Polish Ministry of Justice has prepared the new draft Act on Criminal Liability of Collective Entities for Punishable Offences intended to replace the existing regulations, which have proven to be ineffective.
The purpose of the new draft Act on Criminal Liability of Collective Entities for Punishable Offences is, first of all, to introduce the liability of corporate entities for any criminal offence or treasury offence (to date, liability has been limited to the offences expressly mentioned in the Act currently in force). It will be possible to conduct criminal proceedings against a corporate entity, irrespective of criminal proceedings pending against an individual, and the conviction of an individual will not be a criterion for instituting criminal proceedings against a corporate entity (which is the case at present). The new draft Act on Criminal Liability of Collective Entities for Punishable Offences also considerably increases the maximum penalty for criminal liability of corporate entities to PLN 30,000,000 (currently the maximum fine is PLN 5,000,000).
The main assumptions of the proposed Act are as follows:
- The liability of a corporate entity is to be independent of any previous conviction of an individual (the direct perpetrator) and it will be possible to hold a corporate entity liable for an offence committed in connection with the activity of the corporate entity, even without establishing who the direct perpetrator was.
- A corporate entity may be liable for any criminal offence or treasury offence (at present corporate entities may be held liable only for the offences listed in the Act currently in effect).
- It will be possible to conduct preparatory proceedings against a corporate entity in parallel to proceedings being conducted against an individual (the direct perpetrator) or even before proceedings against the direct perpetrator have been instituted – this is to reverse the current rule.
- A fine of up to PLN 30,000,000 could be imposed on a corporate entity (currently the fine is up to PLN 5,000,000) and its amount will not depend on the amount of revenue generated (at present, the fine may not be higher than 3% of the corporate entity's revenue generated in the year in which the offence was committed).
- Measures will be introduced to protect whistle-blowers, along with an obligation for the corporate entity to conduct internal investigations in order to verify the irregularities reported by whistle-blowers. Failure to conduct an internal investigation could result in the fine being increased up to PLN 60,000,000.
- Corporate entities will be subject to criminal liability notwithstanding any merger, demerger or transformation of the corporate entity.
- It will be possible for a corporate entity to voluntarily admit liability in order to avoid a trial and to agree a more lenient fine with the public prosecutor (this could be a similar institution to the UK/US deferred prosecution agreements).
The new regulations will apply not only to all corporate entities having their registered offices in Poland, but also to foreign entities whenever their actions which constitute a factual basis for liability are committed in Poland or their result was directed against Polish interests.
The scope of liability of a corporate entity is to be expanded. The corporate entity will be liable:
- as it is now, for a prohibited act committed by an individual if the corporate entity receives an economic gain, even indirectly, in a situation of either a lack of due diligence in the selection of, or supervision over, the individual, and if the act is committed as a result of a method of business organisation that does not prevent material risks leading to the commission of a prohibited act;
- for a prohibited act relating to the activities carried out, caused by an act or omission by its governing body or a member of such body, and which has been committed as a result of a wilful action or failure to exercise caution;
- for prohibited acts committed directly in connection with the operations of the business or establishment of the corporate entity as a result of failure to comply with the rules of caution, even if the identity of the individual perpetrator of the act is not established.
Consequently, it will be possible to institute and conduct criminal proceedings against corporate entities separately or jointly with criminal proceedings relating to a prohibited act committed by individuals for whom the corporate entity may be liable.
In the course of the proceedings against a corporate entity, the entity will be able to voluntarily admit its liability in order to avoid a trial and agree a more lenient fine with the public prosecutor. In such a case, the public prosecutor will be able to file with the court, instead of an indictment, a motion for the authorisation of voluntary submission to liability of the corporate entity, provided that:
- the circumstances of the criminal offence are beyond doubt;
- the corporate entity has disclosed to the authorities information on the criminal conduct of an individual acting for or on behalf of the corporate entity or directly collaborating with the entity, including substantial information regarding the committed offence;
- the corporate entity has paid the equivalent of the damage caused by the offence;
- the corporate entity has paid the equivalent of the lowest financial penalty for the offence in question, but not more than PLN 3,000,000;
- the corporate entity has consented to forfeiture of the benefit obtained (or, where the material profit cannot be returned, has paid the equivalent amount).
The public prosecutor's motion for voluntary submission to liability will be subject to the court's approval which, if granted, will be in the form of a judgment.
The benefit for the corporate entity, arising from this specific type of settlement concluded with the law enforcement authorities, is that the final judgment issued according to this procedure would not have to be recorded in the National Criminal Register.
The conditions of voluntary submission to liability will be favourable in comparison with the possible liability under the new draft Act on Criminal Liability of Collective Entities for Punishable Offences, which provides for fines of up to PLN 30,000,000, whereas in the case of the voluntary submission to liability the maximum penalty is PLN 3,000,000.
Apart from the new draft Act on Criminal Liability of Collective Entities for Punishable Offences, another proposed act currently being proceeded by the Polish legislator with respect to the fight against corruption is the draft Act on Transparency in the Public Sphere.
Under the draft Act on Transparency in the Public Sphere, the requirement to introduce internal anti-corruption procedures is to apply to entities that have 50 or more employees and whose net annual turnover or sum of assets on their balance sheet is EUR 10,000,000 or more.
Anti-corruption compliance is to consist in, among other things, the following:
- the introduction of a code of ethics (which is to be signed by all employees, consultants as well as all entities acting for the entity);
- the putting in place of internal procedures and guidelines on gifts and other benefits received by employees;
- the introduction of procedures for reporting corruption allegations to the entity's bodies and the introduction of procedures on dealing with such reporting;
- the prevention of mechanisms that would allow the costs of giving economic and personal benefits to be financed by the entity;
- the use of anti-corruption clauses in agreements;
- the training of employees on criminal liability for corruption offences.
If the public prosecutor's office brings corruption charges against a person acting for or on behalf of the entity, the CBA will be obliged to inspect whether that entity has implemented anti-corruption compliance procedures.
If during the inspection it turns out that internal anti-corruption procedures were not applied or were ineffective or only superficial, the entity will be liable to a fine of up to PLN 10,000,000 and, in some cases, a five-year ban on participating in public tenders.
The draft Act on Transparency in the Public Sphere is also to introduce legal protection for whistle-blowers, who have provided the authorities with information on possible offences (in particular corruption).
The Government sponsored Criminal Justice (Corruption Offences) Bill 2017 (the “Bill”) was presented on 31 October 2017. The Bill aims to consolidate and reform Ireland’s anti-corruption and bribery laws.
The Bill provides for the offence of both active (bribe-giving) and passive (bribe-taking) bribery, which criminalises both giving and receiving a bribe in return for a person doing an act in relation to their office, employment, position or business and applies without distinction to the public and private sectors.
The term “corruptly” is defined in the Bill as acting with an improper purpose personally or by influencing another person, whether by (a) making a false or misleading statement; (b) withholding or altering a document or information or (c) by other means.
The Bill creates a new offence of active and passive trading in influence which prohibits the active and passive bribery of a person who may be in a position to exert an improper influence over an act of a public official. For the purposes of this offence, it is immaterial, whether or not:
(a) the alleged ability to exert an improper influence existed;
(b) the influence is exerted;
(c) the supposed influence leads to the intended result, or
(d) the intended or actual recipient of the gift, consideration or advantage is the person whom it is intended to induce to exert influence.
The Bill criminalises the use by an Irish official of confidential information obtained in the course of his or her office, employment, position or business for the purpose of corruptly obtaining a gift, consideration or advantage for himself or herself or for any other person.
The Bill also creates the offences of (i) giving a gift, consideration or advantage for the purposes of facilitating a corruption offence, (ii) creating or using a false document with the intention of inducing another person to do an act in relation to his or her office, employment, position or business to their prejudice or the prejudice of another and (iii) intimidation by threatening harm with the intention of corruptly influencing a person in relation to his or her office, employment, position or business.
Part 3 of the Bill provides for extra-territorial jurisdiction in relation to corruption occurring outside Ireland where the acts are committed by Irish persons or entities or take place at least partially in Ireland.
Part 4 of the Bill provides for various presumptions of corruption in respect of certain corruption offences to include where:
- a gift, consideration or advantage has been given to an official or a connected person of an official by a person who had an interest in the discharge by the official of any of a number of prescribed functions;
- a gift, consideration or advantage has been given to an official or a connected person of an official and the official performed or omitted to perform any of a number of prescribed functions giving rise to an undue advantage or benefit to the person who gave the gift, consideration or advantage or on whose behalf it was given;
- a political donation that is of a type prohibited by law or in excess of the statutory threshold is made to certain categories of public office holders and is not returned to the donor or notified to the SIPO Commission, as necessary, and where the donor had an interest in the public office holder carrying out or refraining from doing any act related to their office or position; and
- an Irish public official or office holder has property that should but has not been declared in a statement of registerable interests, it shall be presumed, unless the contrary is proved, that the property concerned derives from a gift, consideration or advantage received in return for the person doing an act in relation to his office, employment, position or business.
In an important development, the Bill proposes a new criminal offence under which a company shall be held liable for the corrupt actions committed for the benefit of the company by a director, manager, secretary, employee, agent or subsidiary. The Bill provides for a defence, where the body corporate took all reasonable steps and exercised all due diligence to avoid the commission of the offence. As a result, companies will need to ensure that they have robust anti-bribery and corruption policies and procedures in place.
The Bill sets out a range of penalties for offences. All summary offences are subject to imprisonment of up to 12 months and Class A fines. Indictable offences (with limited exceptions) are subject to unlimited fines and imprisonment of up to 10 years. In addition, the Bill includes provision for the forfeiture of office held by an Irish official following conviction on indictment where the court is satisfied that to do so would be in the interests of justice and in the interests of maintaining or restoring public confidence in the public administration of the State. The court may also prohibit such a person from seeking to hold or occupy certain public offices for a specified period of up to 10 years. The Bill also includes a facility for the seizure of bribes and forfeiture of suspected bribes.
An order has been made for the Bill to go to the second stage of the legislative process and it is not expected to be enacted until the second half of 2018. Accordingly, we can expect to see changes to the provisions as it passes through each stage.
There are currently several bills under review and analysis of the Brazilian Congress for the purposes of amending the current Brazilian Anticorruption Law and/or related laws and regulations (more than one hundred could be identified on the date this Chapter was prepared), being the following the most relevant:
- Bill of Law No. 522/2015, which proposes that the execution and enforceability of a leniency agreement (and the benefits resulting therefrom) should depend on the legal entity refraining from perpetrating any wrongful act for a term of ten years;
- Bill of Law No. 941/2015, which proposes the amendment of the Brazilian Anticorruption Law to exclude all the provisions related to the leniency agreement (on the basis that the Public Authorities should not be allowed to enter into agreements with legal entities that have practiced wrongful acts);
- Bill of Law No. 2.267/2015, which proposes that the execution of leniency agreement shall be followed by a review by the Legislative Branch;
- Bill of Law No. 3.500/2015, which proposes the inclusion in the Brazilian Anticorruption Law of the criteria for determining the pecuniary penalties that may apply to the legal entities as a result of any wrongful acts (there are certain parameters provided for in the Federal Decree, but not in the Anticorruption Law);
- Bill of Law No. 3.636/2015, which proposes the amendment of the Brazilian Anticorruption Law to expressly provide that both the Prosecutor’s Office (“Ministério Público”) and the Attorney’s Office (“Advocacia Pública”) may enter into leniency agreements for the purposes of the Brazilian Anticorruption Law;
- Bill of Law No. 5.208/2016, which proposes the establishment of certain requirements for the execution of leniency agreement by the legal entities, such as the need to be the first entity to report the wrongdoing and the presentation of new documents, which may not have been provided to the authorities under any other agreement, including collaboration agreements entered into individuals and the authorities;
- Bill of Law No. 5.216/2016, which proposes certain amendments to the enrolment of the legal entities in the public database of entities that were penalized under the Brazilian Anticorruption Law;
- Bill of Law No. 7.149/2017, which proposes the amendment of the Brazilian Anticorruption Law to determine the specific provisions regarding compliance programs to be followed by legal entities hired by the public administration;
- Bill of Law No. 7.222/2017, which proposes the use of the proceeds to be collected by the public administration upon application of penalties resulting from violations of the Brazilian Anticorruption Law;
- Bill of Law No. 8.333/2017, which proposes rules to be followed for the disclosure of the administrative and judicial sanctions that imply in restrictions to participate in public bidding or execution of contracts with the public administration; and
- Bill of Law No. 9.795/2018, which proposes that any rural real estate that is collected by the authorities as a result of the application of the penalties provided for in the Brazilian Anticorruption Law are used for the purposes of implementing a rural reform.
The are no immediate known plans to changes the UK's bribery and anti-corruption legislation. However, the UK government has recently 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.
There is nothing planned at this stage other than what has been discussed.
On 19 March 2018, Singapore's Parliament introduced a raft of criminal justice reforms. The most significant implication in terms of bribery and anti-corruption legislation was the introduction of a deferred prosecution agreement (DPA) regime.
The recently implemented DPA regime is similar to that in UK – DPAs will only be available to specific offences (corruption, money laundering, but not cheating or fraud); only be available to corporate offenders represented by counsel and not individuals; be fully voluntary and require the approval by the Singapore High Court.
Further reforms of Singapore's anti-bribery and corruption framework have been mooted. Following the widely publicised Keppel case, various commentators have floated suggestions of amendments to strengthen the PCA. Potential reforms are being considered by the authorities, but it remains to be seen whether any substantial amendments will be implemented.
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 Market Regulatory Administration (“MRA”) 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.
Considering that the SNA was adopted just in 2016, 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. Notwithstanding the foregoing, the outcome of the 2018 presidential election, which may result in political alternation, may derive in new legislative anti-corruption reforms.
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.
The legal framework for corruption offences and related acts (money laundering, tax regulation) has been reformed repeatedly in the last 5 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 2017. There is currently no planning for amending these provisions.
Some of the recent planned developments / reforms in anti-corruption laws are as follows:
- The Fugitive Economic Offenders Bill, 2017 (approved by the Union Cabinet, pending parliamentary approval)
- This Bill aims to stop economic offenders who leave the country after commission of an offence and avoid due process. The Bill seeks to cover within its ambit offences involving amounts of rupees hundred crore or more. This proposed law also seeks to cover those economic offences which are defined under IPC, PCA, and the Companies Act including other economic laws.
- The Whistleblowers’ Protection (Amendment) Bill 2015 (pending presidential assent)
This Bill aims to prohibit the reporting of corruption-related disclosures (by a whistleblower) if it falls under any of the prescribed categories.
- The Prevention of Corruption (Amendment) Bill 2013, (pending parliamentary approval)
Among other reforms, this Bill seeks to amend PCA to primarily incorporate specific provisions for prosecuting ‘bribe giver’ and to include corporate entities within the scope of bribe giver.
See answer 2.
A legislative process is underway, which aims to approve a Code of Conduct for Members of Parliament similar to the one in force for members of Government, including the 150 euro limit for offers.
Not at this point in time.
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 of 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 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. Although first drafts were presented, a German Criminal Code for corporate entities currently seems unlikely.
Although some specific proposals of revision of the legislation are being discussed, there is not, at the moment, a substantial reform project which addresses the issue at a global level and which is likely to see the light in the very near future.
The fight against corruption in Macao is not as recent as it is in some other jurisdictions. Therefore, big changes or reforms are not expected.
HRA: We are not aware of any planned reforms or developments.
A new plea bargaining system is to be introduced and the bribery offences are subject to the system. The system enters into force in June 2018. Under the system, a natural person or corporation will be able to enter into a plea bargain with the prosecutor, under which they agree to give information in relation to charges against or crimes of another natural person or corporation. Information related to the charge against the person or corporation itself will not be enough for them to take advantage of the system.
Currently, the new plea bargaining system is not applied to the bribery of foreign public officials. There is a likelihood, however, that the plea bargaining system will be amended to include the bribery of foreign public officials for the scope of its application.
The adoption of the Sapin II Act is very recent and some decrees aiming at clarifying the enforcement of its provisions are still pending. A clarification of the practical implementation of the rules is the main work in progress.
Within this context, AFA’s mission (which includes the publications of guidelines and their update) will be decisive.
Switzerland has just 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 certain criticism of some aspects and leading to an enhanced follow-up process. Further, a review by GAFI had also identified certain shortfalls. Switzerland is currently revising FINMA's Money Laundering Ordinance, planning to introduce 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. A further point of discussion concerns the expansion of the reporting obligations of lawyers, auditors and accountants, although no specific proposal for a revision has been made yet in that respect.
As mentioned (question 14), the Swiss government further plans to revise the employment law, formalizing the existing rules on whistle-blowing.
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 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.