The anti-bribery and corruption landscape continues to evolve as more countries update their laws, step up enforcement efforts, and work together on investigations.
To assist our clients in navigating this evolving landscape, I am pleased to present the Freshfields’ guide to the global anti-bribery and corruption landscape, which covers key global themes alongside a concise round-up of specific developments in 30 jurisdictions.
The key themes
The spreading enforcement risk
In the past 18 months, many authorities outside the US have shifted gears to ramp up their foreign bribery investigations and enforcement. Countries that have been particularly active over the period include Brazil, Germany, Switzerland and the UK, but there are others where the risk is emerging following a period of little or no enforcement (eg Israel, Singapore). Nonetheless, the US remains the most active single jurisdiction.
In terms of industries, the oil and gas sector, in particular, has been the subject of high-profile enforcement across most regions. Other sectors in prosecutors’ cross-hairs include aerospace, telecoms, construction and financial services.
Commercial bribery has emerged as a key enforcement risk in China. This is likely to continue given changes introduced this year to strengthen China’s commercial bribery laws.
The growing use of alternative means of resolution
Canada and Australia are considering introducing deferred prosecution agreements (DPAs), following in the footsteps of France, Singapore, the UK and the US. The introduction of DPAs or other alternative means of resolution can often be a pre-cursor to increased anti-bribery and corruption enforcement. For example, a key feature of the rise in enforcement in Brazil over the past five years has been the use of leniency agreements which were introduced for bribery and corruption in early 2014. Further, within 18 months of the passage of Sapin II into law in France (which introduced DPAs), France has concluded three such agreements to resolve bribery and corruption charges.
The potential benefits and risks of self-reporting suspected breaches of anti-bribery laws
Various jurisdictions have taken steps to encourage voluntary self-reporting and cooperation. For example:
- legislative reforms in Argentina and Mexico encourage reporting and cooperation in return for leniency;
- prosecutors in Australia have published guidelines to clarify the principles they will apply when deciding what action to take if a company self-reports suspected bribery; and
- the US Department of Justice (DOJ) introduced a presumption, as part of its FCPA Corporate Enforcement Policy, that it will decline to prosecute where a company voluntarily self-discloses misconduct, fully co-operates with the DOJ and takes timely and appropriate remedial action (including paying disgorgement). See here for an analysis of the policy.
These moves are to be welcomed. But companies should also proceed with a degree of caution. In general, prosecutors retain a good deal of discretion when assessing cooperation credit and leniency. For example, if, in the DOJ’s view, aggravating factors are present, then the presumption against prosecution referred to above can be rebutted
The extent of cross-border coordination on penalties
The DOJ’s policy on co-ordination of corporate enforcement seeks to minimise ‘piling on’ of duplicative penalties for the same corporate misconduct by encouraging co-operation among department components and other enforcement agencies within and outside of the US. The development has particular relevance to FCPA investigations where there is a risk of overlapping and duplicative penalties for the same underlying conduct.
Over the past 18 months, the DOJ has coordinated with various other jurisdictions on penalties to credit amounts paid to other jurisdictions in DOJ resolutions with the same companies (e.g. Singapore, France, and Brazil).
The continued focus on compliance procedures
Sapin II in France and the UK Bribery Act put anti-bribery compliance firmly in the spotlight when first adopted. Following these examples, over the past 18 months more countries have adopted or are considering a model of corporate liability that puts a company’s prevention procedures at the centre of the question of whether the company is liable for bribery carried out for its benefit (eg Ireland, Australia, Argentina, Peru). In light of this, companies will need to review compliance procedures in local units to ensure they meet international standards and take account of any specific local requirements or guidance.
Please feel free to get in touch with me or your usual Freshfields contact if you would like to discuss these developments and what they mean for anti-bribery and corruption compliance and investigations in your organisation.
Click here to view the full report.
To answer our clients’ questions, we developed Bribery Watch, an online summary and comparison of anti-bribery and corruption laws and enforcement activity across 150 countries. For more information, please speak to your usual Freshfields contact or email firstname.lastname@example.org.
Global Corporate Crime Guide
To help companies understand and respond to criminal law risks, we produced a cross-border guide to corporate criminal liability and enforcement, which explains the overarching global trends and the corporate crime landscape in seventeen jurisdictions.
To provide a 360 degree view of the issues involved, we pulled together insights of some of our partners and counsel – including former prosecutors and seasoned defence lawyers –to create an anatomy of a corporate criminal investigation.