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
Australia's current federal government has taken steps to enhance the legislative framework for investigations and enforcement including by adopting measures recommended in various reports assessing Australia's implementation of the OECD Convention and related OECD anti-bribery instruments.
One step that has been introduced by the government recently is the introduction of a criminal offence for false dealing with accounting documents which intentionally or recklessly facilitates, conceals or disguises the receipt or provision of a bribe. This offence was introduced to address the difficulty in establishing all required elements to prove bribery, which has resulted in relatively few convictions. For the false accounting offence, the prosecution does not need to prove that the defendant or another person actually received or gave a benefit or that any loss was incurred, nor that the defendant intended that a particular person receive or give a benefit, or incur a loss.
In addition, the current federal opposition party's position is that not enough has been done to address bribery and corruption in Australia. Its proposed policy, if elected, is to introduce other measures such as:
- establishing a national integrity commission to look into possible and systemic corruption in the federal government;
- debarment of corrupt companies from bidding for government work; and
- banning the facilitation payment defence.
To date, Australia's enforcement of foreign bribery offences has lagged behind the United States, United Kingdom and, closer to home, China. There have been cases which involve Australian companies and/or individuals where Australian authorities have still been investigating the alleged offences when foreign regulators have commenced and completed enforcement action.
The legislative measures currently being proposed in Poland indicate that the Polish Government is putting increasing emphasis on improving the anti-corruption legislation. As announced in the Anti-Corruption Strategy 2018-2020, there is an intention to use and coordinate all available instruments in order to achieve the optimal effect.
Meanwhile, in the Transparency International Corruption Perceptions Index 2017 Poland has dropped by 2 positions in comparison to 2016.
To date, a limited amount of domestic bribery law enforcement has taken place. This has focused on domestic public bribery of Irish public officials and public employees for corruption. The Group of States against Corruption (GRECO) published its fourth evaluation report on corruption prevention in Ireland on 21 November 2014. While GRECO praised the transparency of the Irish legislative process and the independence of the judiciary and prosecution service, it highlighted concerns regarding corruption in Ireland and made various recommendations to safeguard against corruption. On 29 June 2017, GRECO published a compliance report relating to the 2014 evaluation. The 2017 compliance report found that Ireland had fully implemented 3 of the recommendations and partly implemented a further 3 recommendations. GRECO has concluded that Ireland’s low level of compliance with the recommendations is “globally unsatisfactory” and Ireland has been asked to report again on progress by 31 March 2018.
Similarly, Transparency International’s eleventh enforcement review of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the Convention) published on 20 August 2015 (the last available report) ranked Ireland as conducting ‘little or no enforcement’ of the Convention.
On 25 January 2017, Transparency International published its 2016 Corruption Perceptions Index. This measures the perceived levels of public sector corruption in 176 countries. Ireland ranks 19th on the index and its score has slightly worsened from 75 to 73 from 2015 to 2016. However, according to the Index, Ireland continues to be perceived as one of the least corrupt countries in the world.
Within the past years, Brazil has lowered its position in the Transparency International ranking of “corruption perception”. Although it may lead to the conclusion that corruption has increased in these past years, the more realistic approach would be that the fight against corruption is now a matter that is being followed by most of the population. More than that, the effects of corruption (such as the lack of investments in schools and education, hospitals and health care and infrastructure) seem to be understood.
When compared to more mature jurisdictions (as it regards to anti-bribery and corruption fight), such as the United States, one can say that Brazil has still to develop its practice. However, the efforts of the country have been considered as a model by other jurisdictions, especially in Latin America, where similar social problems seem to be found.
The steps already taken by Brazil, such as the enactment of a law to provide for the liability of corporate entities; the independence of the judiciary branch, which has been able to grant decisions involving businessmen and politicians; the imprisonment of a former president, are enough to demonstrate that a change in culture is already taking place.
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 improving each year. The UK's ranking moved from 10th place in 2016 to 8th place in 2017.
We believe that the UAE takes an extremely harsh stance on bribery and corruption and prioritizes its prevention and punishment. As discussed above, the UAE has ratified UNCAC and is a member of the Arab Council. Both are internationally recognised mechanisms with the sole purpose of combatting corruption. Anti-corruption plays a huge part in the UAE from the top of the government sector to the bottom of the private sector. Corruption is not taken lightly and the authorities do not hesitate to act against it.
Established in 1952, the CPIB is the world's oldest anti-corruption agency and is generally perceived as highly effective in adopting a zero tolerance approach to corruption. Today, Singapore is recognised as one of the least corrupt countries in the world and was ranked the 6th least corrupt country globally in Transparency International's 2017 Corruption Perceptions Index (CPI). The country's "clean" reputation is thus well deserved in light of significant historic and on-going efforts by the government to curb corruption, particularly in the public sector.
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 in 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.
From an official perspective, tackling bribery and corruption is allegedly a priority item. 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 135 out of 180 with a score of 29/100, according to the Corruption Perceptions Index 2017 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.
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.
Indian Government gives utmost importance to cases of corruption and bribery and passes laws, amends existing laws to tackle the menace of corruption within the country. Compared to an international scale, India’s anti-corruption laws are well spread and involve a robust mechanism for prosecuting corruption cases.
It has been one of the most prolific fields in Angolan legislation. Given the fact that it is a very current issue and that it constitutes a structural obstacle to the development of Angola, the Government has been, in the past recent years, deeply engaged in this fight.
It is only logical that the greater the need for these policies, the harder it is to implement them. However, Angola has taken big steps recently in the fight against corruption, having complied with the rules set by FATF (Financial Action Task Force).
The recently elected President has taken a strong public stance against corruption.
It is undisputable that, for the past 10 or 15 years, the fight against corruption has been one of the public authorities’ priorities in terms of the judiciary system and criminal policy, as is shown by the increasing number of corruption cases that are initiated every year, by the high-profile persons that are involved in some of those cases, as well as by the approval of new anticorruption legislation.
While the level of corruption in Denmark is very 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.
Compliance is a major issue in Germany at the moment. The companies’ compliance awareness grows and leads to higher 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 the companies’ 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 12th out of 180 in the Corruption Perceptions Index for the year 2017 after being ranked as 10th for the year 2016 and 12th for the year 2015. 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.
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, an important intervention occurred in 2012 with a complex and broad reform of the matter, another one occurred in 2017 with the provision of the new criminal offence of ‘attempt to commit private bribery’ and the amendment of the ‘private bribery’ crime structure, and the latest one, occurred a few months ago, related to the regulation of whistle-blowing schemes. 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.
It is, we believe, of public knowledge that the Chinese government adopted, in the recent years, a very strict policy against corruption. In fact, the Chinese Prime-Minister and other Chinese officials have stated, in several public appearances, that the fight against corruption is one of the Chinese government’s priorities for the forthcoming years. Macao, as a Special Administrative Region of China, is required to follow the same policy, which, in concrete terms, has consisted in a very intense activity from the CCAC and other enforcement authorities in pursuing persons and entities involved in bribery and corruption activities
HRA: It is commonly known that Mozambique system is very influenced by corruption and bribery and, therefore, it has become a very important task of the Government to prevent and stop corruption in order to ensure foreign investors and donors.
The Japanese government in general places high importance on tackling bribery and corruption. In the “Corruption Perceptions Index”, Japan is positioned as one of the cleanest countries in the world.
France remains 23 rd in the ranking of Transparency International. Thus, the French are lagging behind significantly in the fight against corruption. Despite having been the “black sheep” for a long time, France has shown its willingness to catch up in the fight against corruption.
However, significant progress has been made especially following the implementation of several laws adopted in 2013 after it was revealed that the former Budget minister had a Swiss bank account on which there was about 600,000 euros undeclared to the tax authorities.
The accuracy of the measures provided for by the Sapin II Act has adopted most of the anti-bribery provisions from the FCPA and the UKBA. France has now adopted a same flexible approach as Anglo-Saxons, which combines hard laws and soft laws. French companies subject to Sapin II are clearly sharing the same business principles as regards Bribery and Corruption as the US and UK companies. France’s Authorities are now focused on the fight against corruption just like American and British Authorities.
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 recently invited Switzerland to pursue an even more active role in prosecuting bribery and corruption.
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.