Bribery Watch. Global investigations. An overview of anti-bribery and corruption laws and enforcement in 150 countries.

Transcription

1 Global investigations An overview of anti-bribery and corruption laws and enforcement in 150 countries November 2012

2 What is? It is very difficult and time consuming to keep track of anti-bribery and corruption laws because they are being introduced or updated more frequently than ever. It is also difficult to keep up with the pace of enforcement. You need to balance robust anti bribery policies and procedures that apply across your organisation with the requirements of local laws in the jurisdictions in which you operate. The penalties for failing to comply can be severe. Based on help we have given our clients we have developed Bribery Watch, an online summary and comparison of anti-bribery and corruption laws and enforcement in 150 countries. In response to client requests, in October 2012, we added 50 new countries and new questions on gifts, hospitality and other advantages, such as charitable or political donations. Over 100 of our clients, across all sectors, use to help them understand the anti-bribery and corruption risks they face. 1

3 Home Choose countries Why do I need? is useful for general counsel, in-house legal teams and heads of compliance, chief risk officers, heads of internal audit, HR directors and other senior executives who need to monitor compliance with anti-bribery laws. It will help your risk management and compliance functions by giving you simple searches and easy reporting. This will make it easier to put in place standards across your organisation that also address local legal requirements. How does work? When you are given access to the Bribery Watch website, select the countries you are interested in and the questions you want to ask. You can choose to view the results by country or by question, and can read reports on screen or download the results as a PDF or a Microsoft Excel document. Home Choose countries Choose questions Africa View report Asia & Australasia Middle East Europe North America South America Choose questions View report Africa Algeria Angola Cameroon Cape Verde Congo (Republic of) Egypt Ethiopia Gabon Gambia Ghana Guinea Guinea-Bissau Kenya Lesotho Madagascar Malawi Mauritius Morocco Mozambique Namibia Nigeria Rwanda North Sudan Senegal Seychelles Sierra Leone South Africa Swaziland Tanzania Tunisia Uganda Zambia Zimbabwe Asia & Australasia Afghanistan Australia Azerbaijan Bangladesh Brunei Cambodia China Georgia Hong Kong India Indonesia Japan Kazakhstan Kyrgyzstan Logout Laos Macau Malaysia Maldives Mongolia Myanmar Nepal New Zealand Pakistan Papua New Guinea Philippines Singapore South Korea Sri Lanka Privacy policy Terms & conditions Legal notices Contact us 2012 Freshfields Bruckhaus Deringer. All rights reserved. Taiwan Tajikistan Thailand Turkmenistan Uzbekistan Vietnam Europe Albania Armenia Austria Belarus Belgium Bosnia & Herzego Bulgaria Cyprus Croatia Czech Republic Denmark Estonia Finland France Germany Greece Hungary Iceland Ireland Italy Kosovo Latvia Liechtenstein Lithuania Privacy policy Terms & conditions Legal notices Contact us 2

4 fields-briberywatch.com Logout Home govina c Luxembourg Macedonia Moldova Montenegro Netherlands Home Northern Cyprus Norway Choose questions Poland Select all questions on this page Portugal Relevant conventions and legislation Offences Penalties Enforcement Romania Choose relevant question group Russia Serbia Relevant conventions and legislation Slovakia Slovenia Offences Spain Penalties Sweden Switzerland Enforcement Turkey Gifts and hospitality Ukraine United Kingdom Middle East Bahrain Iraq Israel Jordan Kuwait Lebanon Oman Qatar Saudi Arabia Syria Privacy policy Terms & conditions Legal notices Logout Choose questions Logout Select all questions on this page Choose countries Relevant conventions and legislation Offences Penalties Enforcement Gifts and hospitality Offences Choose countries 3 Definition of bribery Gifts and hospitality Contact us 4 Is there an offence of bribing a foreign public official (FPO)? 5 What is the definition of a public body and does it include state-owned or state controlled companies? 6 Is there an offence of bribing a domestic public official? 7 Is there an offence of bribing a private person or company? 8 Is it an offence to receive a bribe? 9 Is attempted bribery an offence? 2012 Freshfields Bruckhaus Deringer. All rights reserved. 10 Can both natural and legal persons (ie companies) commit offences? 11 Specific rules regarding liability of board members/senior executives in connection with bribery committed by employees. 12 W here a company is prosecuted or civil proceedings are taken against it, what is the test for attributing liability for acts of individuals to the company (ie vicarious liability for acts of any employee, or only acts of senior persons in the company)? 13 Is it an offence to bribe a person through an intermediary or third party, eg an agent or company? 14 Are facilitation payments (usually small payments for routine services) prohibited? 2012 Freshfields Bruckhaus Deringer. All rights reserved. 15 A re there statutory limitations on the time during which an offence can be prosecuted? 16 Is bribery a predicate offence for any money laundering legislation? Privacy policy Terms & conditions Legal notices Contact us 2012 Freshfields Bruckhaus Deringer. All rights reserved. 3

5 Which questions does Bribery Watch ask? Relevant conventions and legislation 1. Anti-corruption conventions to which the country is a signatory 2. Which legislation deals with anti-corruption? Offences 3. Definition of bribery 4. Is there an offence of bribing a foreign public official (FPO)? 5. What is the definition of a public body and does it include state-owned or state controlled companies? 6. Is there an offence of bribing a domestic public official? 7. Is there an offence of bribing a private person or company? 8. Is it an offence to receive a bribe? 9. Is attempted bribery an offence? 10. Can both natural and legal persons (ie companies) commit offences? 11. Specific rules regarding liability of board members/senior executives in connection with bribery committed by employees. 12. Where a company is prosecuted or civil proceedings are taken against it, what is the test for attributing liability for acts of individuals to the company (ie vicarious liability for acts of any employee, or only acts of senior persons in the company)? 13. Is it an offence to bribe a person through an intermediary or third party, eg an agent or company? 14. Are facilitation payments (usually small payments for routine services) prohibited? 15. Are there statutory limitations on the time during which an offence can be prosecuted? 16. Is bribery a predicate offence for any money laundering legislation? 17. What connection must an offence/ defendant have to the jurisdiction? 18. Can foreign individuals or companies be prosecuted for bribery? (i) if the offence took place within the jurisdiction (ii) if the offence took place outside the jurisdiction 4

6 19. Is there a prohibition on maintaining financial and accounting books and records in such a way as to make bribes or hide bribery? What are the penalties for this? Penalties 20. Do penalties include imprisonment and/or fines? 21. Is there a provision for confiscation of assets obtained by bribery? 22. Is a company convicted of bribery able to be blacklisted in some way so it cannot obtain government contracts? 23. Can a company avoid or mitigate liability by demonstrating that it had adequate procedures within the company s organisation designed to prevent acts of bribery being committed on its behalf? (a) If so, what constitutes adequate procedures? Is there any relevant guidance on this? Enforcement 24. What agencies are responsible for investigating and prosecuting corruption? 25. Are they regarded (eg by Transparency International) as effective and independent? The Corruption Perception Index measures perceived levels of public-sector corruption in a country. The countries are ranked 1st = least corrupt and 182nd = most corrupt and given a score out of Is there an obligation to self- report crimes by a company or by others when they become evident; what are the sanctions for failing to do so; and what is the actual practice? Do external auditors have to report indications of suspected bribery? 27. Is there a mechanism for companies to disclose violations in exchange for lesser penalties? Can matters be resolved through plea agreements, settlement agreements, prosecutorial discretion or other means without a trial? 28. Are these agencies independent of the government? 5

7 29. How active are these agencies? Do corruption investigations and prosecutions regularly take place? 30. Recent examples of notable anti-corruption enforcement including where the case is taken to court, and where a plea settlement is reached. 31. Have the investigating/ prosecuting agencies made recent public statements about their policies/approach, ie targeting particular types of corruption, particular industries, devoting increased resources to anti-corruption? Gifts and hospitality 32. Are there any laws, regulations, or government codes of conduct that specifically restrict or prohibit the giving of gifts or hospitality to (i) government officials and/or public servants (ii) the private sector? (a) If so, are there specific currency limits either stated in such provisions or contained in associated guidance from regulators? (b) What are the possible penalties, if any, for those who violate such provisions or currency limits? 33. Are there any laws, regulations, or government codes of conduct that specifically restrict or prohibit the giving of other advantages (eg charitable or political donations) to (i) government officials and/or public servants (ii) the private sector? (a) If so, are there specific currency limits either stated in such provisions or contained in associated guidance from regulators? (b) What are the possible penalties, if any, for those who violate such provisions or currency limits? 34. Are there any laws, regulations, or government codes of conduct that specifically restrict or prohibit the acceptance of gifts or hospitality by (i) government officials and/or public servants (ii) the private sector? (a) If so, are there specific currency limits either stated in such provisions or contained in associated guidance from regulators? (b) What are the possible penalties, if any, for those who violate such provisions or currency limits? 6

8 35. Are there any laws, regulations, or government codes of conduct that specifically restrict or prohibit the acceptance of other advantages (eg charitable or political donations) by (i) government officials and/or public servants (ii) the private sector? (a) If so, are there specific currency limits either stated in such provisions or contained in associated guidance from regulators? (b) What are the possible penalties, if any, for those who violate such provisions or currency limits? 36. Are there any formal disclosure or other reporting requirements relating to the acceptance of gifts or hospitality for (i) government officials and/or public servants (ii) the private sector? (a) If so, are there specific reporting thresholds stated in such provisions or contained in associated guidance from regulators? 37. Are there any formal disclosure or other reporting requirements relating to the acceptance of other advantages (eg charitable or political donations) for (i) government officials and/or public servants (ii) the private sector? (a) If so, are there specific reporting thresholds stated in such provisions or contained in associated guidance from regulators? 38. If disclosure of the gift or hospitality being offered is made to the senior management or line management of the (a) giver and of the (b) recipient /public body is that sufficient to avoid liability under antibribery and corruption legislation? 39. If disclosure of the other advantage (eg political or charitable donation) being offered is made to the senior management or line management of the (a) giver and of the (b) recipient /public body is that sufficient to avoid liability under antibribery and corruption legislation? 40. Are there any requirements imposed on (i) government officials and/or public servants (ii) the private sector to maintain records of gifts or hospitality? (a) If so, what type of records must be maintained and for how long? 41. Are there any requirements imposed on (i) government officials and/or public servants (ii) the private sector to maintain records of other advantages (eg political or charitable donations)? (a) If so what type of records must be maintained and for how long? 7

9 Which countries does cover? Tunisia Africa Morocco Algeria Egypt Cape Verde Senegal Gambia Guinea Bissau Guinea Sierra Leone Ghana Nigeria North Sudan Ethiopia Cameroon Gabon Uganda Kenya Rwanda Congo (Republic of) Tanzania Seychelles Angola Namibia Malawi Zambia Zimbabwe Mozambique Madagascar Mauritius South Africa Swaziland Lesotho 8

10 Asia and Australasia Kazakhstan Mongolia Uzbekistan Georgia Turkmenistan Azerbaijan Afghanistan Kyrgyzstan Tajikistan China South Korea Japan Pakistan Nepal Bangladesh India Myanmar Laos Thailand Cambodia Macau Taiwan Hong Kong Vietnam Philippines Maldives Sri Lanka Brunei Malaysia Singapore Indonesia Papua New Guinea Australia New Zealand 9

11 Europe Norway Finland Iceland Sweden Estonia Russia Ireland Portugal Spain Denmark United Kingdom Netherlands Latvia Lithuania Belarus Poland Germany Belgium Czech Luxembourg Republic Ukraine Slovakia France Austria Hungary Moldova Switzerland Liechtenstein Slovenia Romania Croatia Bosnia and Herzegovina Serbia Montenegro Kosovo Bulgaria Italy Macedonia Albania Greece Turkey Armenia Northern Cyprus Cyprus 10

12 Middle East Armenia Lebanon Israel Syria Iraq Jordan Kuwait Saudi Arabia Bahrain Qatar United Arab Emirates Oman Yemen 11

13 North America Canada United States of America Mexico Cayman Islands Puerto Jamaica Rico Honduras Dominican British Virgin Islands Guatemala Republic Antigua and Barbuda El Salvador Nicaragua Barbados Trinidad and Tobago Costa Rica 12

14 Venezuela Guyana Colombia South America Ecuador Peru Brazil Bolivia Paraguay Chile Argentina Uruguay 13

15 How often is updated? We update the information in every six months and whenever there are significant developments. How to save on your PC Click on the logo and drag it onto your desktop. In response to client requests, in October 2012 we extended to cover 50 more countries, and added a section on gifts, hospitality and other advantages (such as charitable and political donations). Freshfields What s new in the fight against bribery and corruption (webinar) In this one-hour webinar our team compares the different approaches to anti-bribery and corruption legislation and enforcement in recent years, and considers what companies should do to respond. To access the webinar go to: freshfields.com/giwebinars or tamasin.manwaring@freshfields.com 14

16 How to add the icon to the home screen on your smart phone or tablet 1. Log on to Bribery Watch, and tap the Share button at the bottom of the screen 2. Tap the icon labelled Add to Home Screen 3. Tap the Add button 4. Launch Bribery Watch from your Home screen by tapping the icon 15

17 Contacts For further information about, please speak to your local Freshfields contact, or contact Chris Pugh Partner T E christopher.pugh@freshfields.com Michelle Bramley Global Practice Development Lawyer T E michelle.bramley@freshfields.com Co-heads of our Global Investigations Practice Marius Berenbrok Partner T E marius.berenbrok@freshfields.com Geoff Nicholas Partner T E geoff.nicholas@freshfields.com Adam Siegel Partner T E adam.siegel@freshfields.com 16

18 is a limited liability partnership registered in England and Wales with registered number OC It is authorised and regulated by the Solicitors Regulation Authority. For regulatory information please refer to Any reference to a partner means a member, or a consultant or employee with equivalent standing and qualifications, of or any of its affiliated firms or entities. This material is for general information only and is not intended to provide legal advice., November 2012, 34681

19 freshfields-briberywatch.com