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Anti-bribery and corruption laws - an international guide

On an almost daily basis, stories and scandals are appearing in the press about corruption in sport, politics, business and the media, all at a time when a number of key European jurisdictions have strengthened their anti-corruption laws and regulations.

Although much has been made of the severity and scope of the new UK Bribery Act, a review of the anti-corruption laws of the jurisdictions covered by our publication shows that, in fact, there is nothing particularly novel or unique about the individual elements of the new UK law. However, what is unusual about it is that all of the more expansive elements appear together in a single regime – public and private sector bribery, liability for facilitation payments, corporate liability, including for overseas acts and even liability for foreign corporates who have a UK business presence.

Almost all of the jurisdictions provide for offences in relation to private and public sector bribery (France and Bosnia & Herzegovina are the notable exceptions).

Nearly all of the jurisdictions also provide for corporate liability in some shape or form (be it criminal or administrative liability). The only exceptions are Ukraine and the Czech Republic, although draft legislation currently being considered in the Czech Republic would introduce corporate liability there.

Almost half of the jurisdictions allow for prosecution of nationals and corporates for their overseas acts. The UK is also not unique in allowing for prosecution of foreign corporates in respect of their overseas actions – Hungary and, in some cases, Bosnia & Herzegovina and the Netherlands also allow for prosecutions in such cases.

UK businesses have complained that the zero tolerance approach in the Bribery Act to facilitation payments for public officials will put them at a competitive disadvantage as against their foreign competitors. However, almost all of the countries listed criminalise such payments (the exception is Switzerland – where such payments are criminalised only if paid to Swiss officials). In practice, in some of these countries, small and irregular facilitation payments are unlikely to be prosecuted, but the UK is no different in this regard.

Concerning defences, much has been made of the “adequate procedures” defence to the corporate offence under the UK Bribery Act and the administrative burden this will place on businesses, yet Italy’s “modello” defence is very similar. More generally, many of the jurisdictions covered in the guide provide no defences at all; others, notably Ukraine, Serbia, Russia, Poland, Hungary and Bosnia & Herzegovina provide a defence in some cases where the wrongdoer self-reports and cooperates with the authorities. The UK Serious Fraud Office is keen to promote self-reporting, but without the ability to guarantee a non-criminal outcome for those who do self-report, the benefits of doing so are uncertain and will need to be considered on a case-by-case basis.

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