How much importance does your government place on tackling bribery and corruption? How do you think your jurisdiction’s approach to anti-bribery and corruption compares on an international scale?
Bribery & Corruption (2nd edition)
China has attached great importance to tackling bribery and corruption. Under the global context of combating bribery and corruption China has kept pace on an international scale and progressed by leaps and bounds over the past few years. The top-down revolution, which involved the promulgation and amendment of foundational legislations, the restructuring of enforcement authorities, the establishment of Supervisory Commission, the integration of anti-corruption resources, as well as the intensive enforcement actions from both administrative and criminal level, has vividly demonstrated the determination of the Chinese government in handling any lingering issues. In addition, the dedication in international cooperation has impelled the development of a transnational consensus on anti-bribery and anti-corruption. In 2018 alone, China has signed Extradition Treaties and Mutual Legal Assistance Treaties on Criminal Matters with 16 countries. And the enactment of the International Criminal Judicial Assistance Law in 2018 further establishes the fundamental framework of international cooperation on criminal justice, which clarifies the required process for China to raise request to or accept request from foreign judicial authorities regarding criminal judicial assistance.
French government authorities place more and more emphasis on the fight against corruption, as evidenced, notably, by the adoption of the Sapin II act, the multiplication of criminal proceedings with respect to bribery offences, the growing activities of specialized agencies such as the PNF and the AFA, and the recent conclusions of various settlements in bribery cases.
Furthermore, government authorities seem particularly keen on playing their role on the international scene, and on taking responsibility for cases involving French protagonists.
However, even though resources allocated to the investigation and prosecution of bribery cases have been increased in the past few years, they remain limited as compared to the means deployed by other jurisdictions, such as the US or the UK.
Compliance is a major issue in Germany at the moment. Company compliance awareness is growing and leading to increased expenses for compliance-related subjects. According to Art. 4.1.3 of the German Corporate Governance Kodex, the board of a stock corporation shall install reliable compliance systems. Therefore, many companies are committed to improving or introducing a corporate compliance program. However, the requirements for such a program are not defined. Although the government tries to increase company compliance awareness, legal or administrative activities related to compliance are not subject to current discussions in the field of law.
According to Transparency International, Germany is ranked as 11th out of 180 in the Corruption Perceptions Index for the year 2018 after being ranked as 12th for the year 2017 and 10th for the year 2016. The index measures the perceived corruption in politics and administration based on expert opinions. According to the index, Germany has not made any progress in recent years.
Combating corruption is steadily a priority in the government’s agenda partly due to obligations undertaken by the country to make necessary reforms. There is an aggressive approach towards cases of alleged corruption, often combined with excessive use of the legal instruments provided for tracing and recovering assets connected with alleged corruption acts even on thin suspicion. In many cases, there is excessive use of tax auditing and review in trying to link profits or gain with possible corruption acts. In this respect, it is quite usual in practice to have parallel proceedings (criminal investigations, tax audits and criminal tax investigations) as well as total freezing of assets even at the preliminary phases of these investigations.
Greece has ratified all international instruments for combating corruption (see 19). It has established special enforcement agencies to investigate such acts and is consistently exchanging information with other jurisdictions. A set of procedural rules is also in place (partly deviating from the standard criminal investigation procedures) to enable speedy collection of evidence, asset securing and recovery, priority in further processing of corruption cases until referral to trial.
As mentioned above, the government has recently published a suite of measures in the White Collar Crime space with a view to increasing transparency and strengthening Ireland’s response to white collar crime. Among these measures was a commitment to review Ireland’s anti-corruption and anti-fraud structures and procedures in criminal law enforcement. In 2018, a review group was set up to carry out such review. The government therefore appears to be taking active measures in terms of the approach of various State bodies involved in the prevention, detection, investigation and prosecution of fraud and corruption. Notwithstanding this, Ireland remains somewhat behind its international counterparts in terms of investigating and prosecuting bribery and corruption. In the UK, there have been multiple prosecutions under the Bribery Act, 2010. The UK government have also issued guidance regarding the Bribery Act which provides key insights as to how the UK Ministry of Justice intend the Bribery Act to be implemented. It is hoped that following the aforementioned review, a similar approach will be followed in Ireland.
In the latest years the legislation regarding bribery and anti-corruption has been revised many times: new criminal offences have been included in the Criminal Code and in the Civil Code, the ANAC has been entitled with further powers, etc. Italian Parliament has by and large shown a particular attention to the revision and updating of legislative provisions regarding bribery and anti-corruption: namely, after a complex and broad reform of the matter occurred in 2012, two important interventions occurred in 2017 (the former with the provision of the new criminal offence of ‘attempt to commit private bribery’ and the amendment of the ‘private bribery’ crime structure, the latter related to the regulation of whistle-blowing schemes) and another one occurred very recently, with the entry into force of the above-mentioned Law no. 3, dated 9th January 2019, which brought significant modifications to the regulation on bribery and corruption.
Now, there is no reason to doubt that the Italian Parliament will keep doing so in the next years. At a general level, we think that Italian jurisdiction approach to anti-bribery and corruption has made significant progress in the latest years, and that the sometimes low results of the enforcement are due to some weaknesses of the Italian judicial system at a general level.
After an investigation is completed, severe sanctions are asked before the Court by the Public Prosecutor. When the bribery or corruption is considered to have been perpetrated, the courts apply often those severe sanctions.
As stated in Answer 19, Japan has been required to tackle bribery and corruption in compliance with international conventions. Under this national policy, as stated in Answer 16, investigative authorities such as the prosecutors’ office and the police have been active to investigate domestic and overseas bribery cases in Japan. It is likely that the application of the plea-bargaining system enables the investigative authorities to collect evidence efficiently and effectively.
The government has made considerable effort to tackle bribery and corruption but has failed immensely when such offences are committed by high ranking government officials. It appears that such officials are “immune” to prosecution for bribery and corruption offences. In the global Corruption Perception Index (CPI) 2018 released by Transparency International earlier this year, Kenya has scored 27 out of the possible 100 putting it at position 144 out of 180. The report indicates that Sub-Saharan Africa is the lowest scoring region on the index and that it has failed to translate its anti-corruption commitments into any real progress.
The US government places great importance on combatting bribery and corruption and has been a global leader in developing effective methods to investigate and prosecute FCPA violations.
From an official perspective, tackling bribery and corruption is allegedly a priority item for AMLO’s administration.
However, austerity, another priority item of the government, has negatively impacted the efforts against bribery and corruption due to a budget cut affecting the seven entities of the SNA. This budget cut resulted in resources allocated to such SNA entities of 0.5% to 27.2% in comparison to the 2018 budget.
The enactment and implementation of the SNA has been one of the main efforts and challenges of the current federal administration. Though, the results are yet to be seen. At this moment, even though Mexico is a party to main anti-corruption conventions and therefore, its approach seems to be similar to that one of top economies and least corrupt countries, the implementation of specialized laws has been slow. Furthermore, even if implemented, the enforcement of those laws and the avoidance of conflict of interest between the federal government and prosecuting agencies remains as an area of opportunity for improvement. There is intense pressure exercised by academic institutions, NGOs, international observatories and international organizations, for the Mexican government to successfully develop and enforce anti-corruption policies and legislation. Despite all efforts and the deployment and implementation of the SNA, Mexico’s comparison in international scale is not favourable; as mentioned above, it ranked 138 out of 180 with a score of 28/100, according to the Corruption Perceptions Index 2018 issued by Transparency International, with only four Latin American nations ranked lower. As per the foregoing, Mexico is the worst ranked country among OECD and the G20 members.
KLA has received Transparency International at our auditorium. Corruption is now “visible” to all of society but simultaneously anti-corruption efforts have intensified.
In comparison to other countries, one can say Brazil still has a long way to go. Nonetheless, Brazil has modelled jurisdictions that consolidated “best practices” and the numbers of Car Wash Probe are a proof of Brazilian seriousness in the combat of corruption:
a) 2476 proceedings have been started;
b) 754 requests for international cooperation;
c) 90 criminal accusations against 429 different individuals;
d) 244 convictions against 159 individuals;
e) Crimes allegedly occurred involve bribes of BRL 6,4 billion; and
f) Prosecutors are seeking for indemnification exceeding BRL 13 billion.
New Zealand has a low level of bribery and corruption and there is a strong wish for the country to remain that way. Particularly as New Zealand is a small nation that depends on exports and trade to succeed economically.
Given that the problem is not thought to be significant, there will be a comparatively low resource and expenditure in this area.
A 2016 OECD report did remark that while New Zealand has made some progress in its detection and investigation of foreign bribery, there was a significant need for New Zealand to strengthen enforcement of its foreign bribery offence.
More effort and resource is likely to be required in this area as a result.
While the level of corruption in Denmark is low, tackling corruption is not seen as a matter of political priority in Denmark and the current government approach has been criticised as lagging compared to other European jurisdictions.
In recent years, the competent authorities in the fight against corruption in Romania have investigated and sent to court individuals from different sectors of activity, the quality of these persons being relevant for highlighting the increased interest of the authorities in combating the phenomenon of corruption on a national scale.
Thus, it can be seen that investigations conducted by DNA during 2018 concerned: (i) seven dignitaries (one minister, two parliamentarians and four secretary of state); (ii) 25 mayors and deputy mayors; (iii) four presidents of county councils; (iv) seven county or local councillors; (v) 17 senior management positions within local authorities; (vi) three magistrates; (vii) seven lawyers; (viii) 19 police officers; (ix) 18 persons with leading positions in public institutions; (x) seven directors of companies / national companies; (xii) seven teachers and principals - in the field of education; (xiii) six hospital managers and doctors - in the health field.
On the other hand, the high interest in investigating this kind of offenses and the criminal responsibility of the guilty persons is revealed by the existence in the DNA of some priority investigation sectors, as evidenced by the DNA Activity Report for 2018, respectively: (i) Corruption in the health system; (ii) Corruption in the field of forestry and illegal logging; (iii) corruption in public procurement; (iv) Corruption in the provision and use of public subsidies; (v) Offenses against the financial interests of the European Union.
Last but not least, the increased interest of the authorities in terms of corruption offenses is also evidenced to an external factor, dimensioned by the indicators provided in the MCV reports on the recommendations of the European Commission addresses to Romania from the perspective of continuing the anti-corruption fight.
Singapore adopts a zero-tolerance approach to corruption. Based on CPIB’s Annual Report 2018, the CPIB has consistently achieved a high annual clearance rate, completing investigations into 80% of the number of subjects investigated in 2018. The conviction rate also remained high, averaging 98% over the past five years.
Singapore was ranked third least corrupt country globally in Transparency International's 2018 Corruption Perceptions Index (CPI). In the Political and Economic Risk Consultancy's 2018 Report on Corruption in Asia, Singapore was also ranked the least corrupt country in the region - a position Singapore has held since 1995. Further, Singapore ranked fourth for absence of corruption in the 2017-2018 Rule of Law Index compiled by the World Justice Project, and is the top Asian nation out of 113 countries.
Singapore’s resolve and commitment to fight corruption continues to be deeply unwavering. Singapore’s anti-corruption approach stands shoulder to shoulder with the best international standards both locally and in terms of international co-operation with other anti-corruption agencies.
The Federal Prosecutor has publicly stated that combatting foreign bribery and corruption is a key priority for the Swiss government. In line with this policy, the number of prosecutions and convictions has steadily risen in the past years. The Swiss government also pursues an active role regarding mutual legal assistance, supporting foreign investigations of corruption.
In absolute terms, however, the case numbers still lag behind those of other jurisdictions. While this can be explained to some extent with the integrity of Switzerland's economy as well as certain procedural peculiarities, the comparatively low level of prosecution has nonetheless drawn certain criticism from the OECD, and the OECD has invited Switzerland to pursue an even more active role in prosecuting bribery and corruption.
The UK has been described by the OECD as a "major enforcer of the foreign bribery offence". Many perceive the UK to be one of the two most active enforcement regimes in the world (along with the US).
During the 2016 Anti-Corruption Summit, the UK committed to establishing and hosting the International Anti-Corruption Co-ordination Centre (IACCC). The IACCC was officially launched in July 2017 and will be hosted by the National Crime Agency in London until 2021. The IACCC aims to bring together specialist law enforcement officers from multiple jurisdictions into a single location to tackle allegations of grand corruption.
In December 2017, the UK government launched its Anti-Corruption Strategy 2017 to 2022, setting out plans to tackle domestic and international corruption. Commitments in the plan include better coordination in the fight against economic crime, and a new Ministerial position focused on economic crime.
The UK government has also put in place improved "blockbuster" funding for the SFO, allowing it greater financial resource to tackle the largest and most challenging cases.
In Transparency International's Corruption Perception Index, the UK's scores have been high. The UK ranking's general trend has been improving each year despite the UK's position dropping slightly in the past year. The UK's ranking moved from 8th place in 2017 to 11th place in 2018.
Canada’s government would likely express considerable commitment to tackling bribery and corruption. However, commentators have called such commitment into question, including criticism by the OECD in 2011. Prosecutions due to contraventions of anti-bribery laws in Canada do appear to be significantly less than in other countries, such as the United States and the United Kingdom. That said, recent legislative amendments set out above do suggest further governmental focus.
Nowadays, more than ever, tackling bribery and corruption is on the agenda of Portuguese political makers.
That agenda, and more penalizing laws, have increased, and several corruption cases have got up to speed in the last few years.
The current Administration has set tackling bribery and corruption as a priority.
Core anticorruption legislation has been drafted and approved under the current Government, such as the aforementioned Law 27304 (“Repentant Law”), Law 27319, allowing for special investigative techniques, including economic awards to whistle-blowers, Law 27401 (establishing criminal corporate liability), and the Emergency Decree 62/2019, implementing a civil procedure for asset recovery. Besides, a Transparency and Freedom of Information Law was passed (Law 27275), and specific regulations on gifts to public officials (Decree 1179/2016), and administration of conflicts of interests in public procurement (Decree 202/2017) were also approved. In 2019, the Government also sent to Congress a Project Bill reforming the Law on Public Ethics.
Under this administration anticorruption enforcement was strengthened, and Government agencies such as the Anticorruption Office and the Financial Intelligence Unit participated as private prosecutors (“querellantes”) in several corruption investigations involving high rank officials of the former administration.
The Government also focused in corporate governance reform of state owned enterprises (SOEs), with emphasis in strengthening transparency and integrity measures. Taking into account how relevant these businesses are in the sectors of the economy in which they act, such reforms have the potential to achieve a wide cross sectoral impact.
Finally, integrity in public procurement was also strengthened by different measures beyond Decree 202/2017, like widening the use of online bid specifications, new integrity conditions introduced to the public procurement regulations (Decree 1168/2018) and the mandatory implementation of compliance programs as a condition for grand state contractors as established by article 24 of Law 27401, of Legal Persons Criminal Liability for Corruption Offenses.
Nowadays, our Government gives a high importance to the actions against corruption once for several years, we have lived an impunity regime. Angola is changing and one of the main goals of the President of Angola elected in 2017 is to fight against corruption.