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Anti-corruption laws in Asia Pacific

FINANCIAL INSTITUTIONS ENERGY INFRASTRUCTURE, MINING AND COMMODITIES TRANSPORT TECHNOLOGY AND INNOVATION PHARMACEUTICALS AND LIFE SCIENCES
A NORTON ROSE GROUP GUIDE
Anti-corruption laws
in Asia Pacific
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Preface
We are pleased to present Anti-corruption laws in Asia Pacific. This guide
forms part of our key Asia Pacific publication series which currently includes
Arbitration in Asia Pacific, Banking security law in Asia Pacific, Disclosure and
privilege in Asia Pacific, M&A law in Asia Pacific, Joint ventures: protections
for minority shareholders in Asia Pacific, Doing business in Asia Pacific and
Renewable energy in Asia Pacific.
The purpose of this guide is to provide an overview of international and
national anti-corruption regimes within an Asia Pacific context. It highlights
how corporations should best approach anti-corruption compliance,
transactional and third party due diligence and corruption investigations. It
also examines related issues from anti-money laundering and whistleblowing
regimes. For ease of jurisdictional comparison, we have arranged for each
chapter to be organised according to the following headings:
TI rankings
International anti-corruption conventions and inter-governmental
organisations
Anti-bribery legislation and major offences
Facilitation payments, hospitality and gifts
Corporate liability for the acts of subsidiaries, employees and third parties
Liability of individual directors and officers
Anti-money laundering legislation
Whistleblowing legislation.
We hope that this guide will provide a useful introduction to a field which
has assumed a critical importance for companies, individuals and regulatory
authorities alike.
The information contained here is as accurate and up-to-date as possible as
at 1 November 2011. The guide is simply a summary of the key issues relevant
to anti-corruption and is not a substitute for legal advice. If you would like to
discuss any of the issues raised here, please get in touch with us.
Norton Rose Group is one of the few truly global practices with a proven
expertise in handling international corruption matters, particularly, within
Asia Pacific. The Business Ethics and Anti-Corruption Group advises clients
on all matters relating to business ethics and anti-corruption and has acted
in major corruption investigations within Asia Pacific.
Anti-corruption laws in Asia Pacific
Acknowledgements
The chapters on Australia, China, Hong Kong, Indonesia, Singapore, Thailand
and Vietnam have been provided by Norton Rose Group and its associate
offices. We gratefully acknowledge the assistance of the law firms who have
contributed to the chapters on India, Japan, Malaysia, Philippines, South
Korea and Taiwan. These firms are identified at the start of each chapter
and further details on the contributors are given at the end of the guide.
Contents
08 Introduction
12 Australia
19 China
29 Hong Kong
35 India
39 Indonesia
42 Japan
47 Malaysia
53 Philippines
59 Singapore
64 South Korea
68 Taiwan
72 Thailand
76 Vietnam
80 Key anti-corruption issues
89 Anti-bribery regimes in the UK and US
96 Contacts
98 Contributing law firms
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Introduction
Anti-bribery regimes
The OECD Convention on Combating Bribery of Foreign Public Officials (OECD Convention)
requires countries to criminalise the bribery of foreign public officials (OECD offence).
The OECD Convention established a form of peer review through a Working Group which
is tasked with assessing each countrys establishment of anti-corruption legislation, its
implementation, enforcement and sector-related corruption issues. In December 2009,
the OECDs Anti-Bribery Recommendation for Further Combating Bribery of Foreign Public
Officials in International Business (the OECDs Recommendation) was released. The OECDs
Recommendation is designed to assist member countries in preventing, detecting and
investigating allegations of foreign bribery. Under the OECDs Recommendation, both
individuals and corporations that bribe foreign public officials in international business will
be subject to criminal sanctions.
The United Nations Convention against Corruption (UNCAC) requires each participating State
to put in place and enforce legislation prohibiting bribery of both public officials and persons
in the private business sector. In contrast to the OECD Convention, there is no ongoing
monitoring mechanism of anti-corruption compliance. The UNCAC also requires the institution
of legislation criminalising bribery of public officials (both domestic and foreign). States are
required to include corporate liability in these offences.
A related convention is the United Nations Convention against Transnational Organized
Crime (UNCTOC). UNCTOC entered into force in September 2003 and signifies a major
step in the fight against transnational organised crime. States that ratify this convention
agree to implement certain measures against transnational organised crime including the
establishment of domestic criminal offences relating to, amongst other things, corruption and
money laundering, mutual assistance and law enforcement cooperation.
In November 2001, the Asian Development Bank (ADB) and the OECD brought together
28 Asian and Pacific economies that have committed to implement the OECD anti-bribery
instruments (ADB/OECD Asia Pacific Anti-Corruption Initiative). In 2004, the leaders of the
Asia-Pacific Economic Cooperation (APEC) countries agreed to implement UNCAC and, in
2005, set up the Anti-Corruption and Transparency Task Force to conduct peer reviews of anti-
corruption measures.
Civil society organisations, such as Trace and Transparency International (TI), which
publishes the Bribe Payers Index (BPI) and the Corruption Perceptions Index (CPI), and online
resources such as the FCPA Blog, have proved remarkably effective at drawing international
attention to the absence of adequate national and corporate anti-corruption measures. In
response to international conventions and the pressure exerted by civil society organisations,
many countries have introduced draconian national anti-bribery and anti-money laundering
laws which extend both to the private and public sectors. In particular, stringent and
extensive anti-bribery legislation has recently come into force in the UK.
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Introduction
Most countries in Asia Pacific already have national and international anti-bribery legislation in
place. China has recently amended its Criminal Law directed at international bribery of foreign
public officials, while India and Indonesia are in the process of updating their legislation. Other
countries are strengthening their laws or pledging to take tougher enforcement actions.
Anti-money laundering
Bribery and money laundering are often inter-related with one invariably giving rise to the
other. The Financial Action Task Force (FATF), which was formed by the G7 in 1989, has
responsibility for examining money laundering techniques and trends, terrorist financing,
peer reviews and setting out the measures that need to be taken to combat money
laundering. The obligations now imposed on most professional and financial institutions,
to report suspicions of money laundering and not to tip off suspects, are in certain respects
even more draconian than anti-bribery legislation.
Most Asia Pacific countries are members of the Asia Pacific Group on Money Laundering
(APG) and have criminalised money laundering and instituted financial intelligence units to
share information about suspicion of money laundering activities globally.
Most anti-money laundering systems will require professional and financial institutions
and persons to report any suspicion of money laundering, often referred to as a suspicious
activity or transaction report which will be underpinned by a tipping off offence to prevent
prior disclosure of that report to the client or its advisers. A failure to submit such a report can
lead to a prosecution and any unauthorised prior disclosure can be prosecuted as a tipping
off offence.
Although there has been a lot of recent commentary on the need for companies to self-
report instances of bribery, for those organisations which are already subject to anti-money
laundering obligations, a self-reporting regime has already been in place for some time
which requires effective compliance systems to be established in order to assess and detect
potential money laundering risks. Many of those compliance systems will be similar to those
now required to meet the challenges set by newly introduced anti-bribery legislation.
Whistleblowing
A number of countries in Asia Pacific have had long established whistleblowing regimes in
place and others have recently introduced new whistleblowing legislation.
For many US companies operating in the Asia Pacific region, the Dodd-Frank Wall Street Reform
& Consumer Protection Act (Dodd-Frank Act) may have serious implications. Section 922 of the
Dodd-Frank Act has introduced a new external whistleblowing regime with significant financial
incentives. Although the Dodd-Frank Act is primarily directed at infractions of US securities
law, its scope is wide enough to include any company operating in Asia Pacific that is exposed
to US securities law and the Foreign Corrupt Practices Act (FCPA). As the financial incentives
range from 10 per cent to 30 per cent of monetary recoveries made by enforcement agencies,
potential whistleblowers are incentivised to go directly to the regulators.
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Corruption Perceptions Index and Bribe Payers Index
The CPI ranks countries according to the perceived levels of corruption in the public sector.
The CPI is an aggregate indicator of information gathered by TI sources. The information
is based on independent surveys and assessments relating to bribery of public officials.
Countries are only ranked where at least three sources of information are available. The 2011
version of the CPI ranks 183 countries and territories, with the number one ranking being the
country/territory with the lowest perceived level of corruption.
The BPI looks at the sources of corruption in the international marketplace, both in terms of
where the bribes are paid and by which businesses. The results illustrate how corruption is
viewed by senior business executives operating in a range of industries. The 2011 version
of the BPI ranks 28 of the worlds most economically influential countries according to the
likelihood of their firms to bribe abroad.
The rankings of countries in this guide under one or both of these indices will be listed in the
following chapters. Please note that not all countries have been ranked on both surveys.
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Introduction
Abbreviations
A number of abbreviations have been used throughout the guide. For ease of reference,
they are as follows:
Institution/Convention/Legislation Abbreviation
Asia Pacific Group on Money Laundering APG
Bribe Payers Index 2011 BPI
Corruption Perceptions Index 2011 CPI
Dodd-Frank Wall Street Reform & Consumer Protection Act 2010 Dodd-Frank Act
Financial Action Task Force FATF
Financial Intelligence Units FIU
Foreign Corrupt Practices Act FCPA
Organisation for Economic Cooperation and Development OECD
OECD Convention on Combating Bribery of Foreign Public Officials OECD Convention
Transparency International TI
United Nations Convention against Corruption UNCAC
United Nations Convention against Transnational Organised Crime UNCTOC
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Australia
Contributed by Norton Rose Group
TI rankings
8th on the CPI. 6th on the BPI.
International anti-corruption conventions and inter-governmental
organisations
Ratified and implemented OECD Convention and ratified UNCAC. Member of ADB/OECD Asia
Pacific Anti-Corruption Initiative. Ratified UNCTOC. Member of FATF and APG.
Anti-bribery legislation and major offences
Legislation
State
State and Territory laws criminalise corruptly giving or offering an inducement or reward to an
agent for doing or not doing something in relation to the affairs of the agents principal.
Generally, the giving or offering is done corruptly where the person gave or offered the
inducement with the intention of influencing the agent to show favour.
The offences extend beyond rewards given to State and Territory Government officials
and apply to rewards given to employees or agents of private or public companies and
individuals.
Persons who aid, abet, counsel, procure, solicit or incite the commission of the offences are
also guilty of an offence.
Commonwealth
Australia implemented the OECD Convention in 1999 by enacting anti-bribery provisions in
the Criminal Code Act 1995 (Criminal Code). The Criminal Code applies to bodies corporate in
the same way as it applies to individuals. Criminal responsibility of corporations also extends
to situations where the corporation attempts to commit the offence, aids, abets, counsels,
procures or incites the commission of the offence or conspires to commit the offence.
Private sector
The Criminal Code does not apply to bribery in the private sector. State and Territory laws
deal with private sector bribery.
Public sector
Under Commonwealth legislation, bribery in the public sector can be broken down into
bribery of a foreign public official and bribery of a Commonwealth public official.
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Australia
Bribery of a Foreign Public Official
Under Division 70 of the Criminal Code, it is an offence to bribe a foreign public official. The
offence has a number of elements which must all be satisfied. There must be an intention
to provide a benefit (which includes not only actual benefits, but also offers or promises to
provide benefits) which is not legitimately due, with the intention of influencing a foreign
public official in the exercise of his duties in order to obtain or retain business or a business
advantage which is not legitimately due.
The offence applies to Australian citizens, residents and corporations or any person who
engages in conduct constituting the offence and that conduct occurs wholly or partly
in Australia, aboard an Australian aircraft or ship, or occurs outside of Australia but is
committed by an Australian citizen or resident or an Australian body corporate.
Criminal liability may extend to a person who attempts to commit the offence or aids, abets,
counsels, procures or incites the commission or the offence or conspires with another person
to commit the offence.
The category of persons who are foreign public officials for the purposes of the Criminal
Code is broad. In particular, it includes, amongst others: employees, contractors or
officials of foreign Government bodies which includes companies in which a Government
has a controlling interest or stake or with which it has a special relationship. Accordingly,
foreign state owned enterprises are generally a foreign Government body. The definition
also includes individuals who are employed by or perform duties or services for a public
international organisation. For example, the United Nations is a public international
organisation.
Bribery in respect of Australian Commonwealth Public Officials
Under Division 141 of the Criminal Code it is an offence for any person or body corporate
(Australian or foreign) to dishonestly provide a benefit (which includes not only an actual
benefit but also an offer or promise to provide a benefit) with the intention of influencing a
Commonwealth Public Official in the exercise of that officials duties as a public official. It is
also an offence for a Commonwealth Public Official to dishonestly ask for, receive or agree
to receive or obtain a benefit with the intention that the exercise of the officials duties will
be influenced.
Criminal liability may also extend to a person who attempts to commit the offence or aids,
abets, counsels, procures or incites the commission of the offence or conspires with another
person to commit the offence.
The category of persons who are Commonwealth Public Officials is broad. It includes a
member of Parliament, an administrator of a Territory, a Commonwealth judicial officer or
public servant, persons who perform duties of an office established under the laws of the
Commonwealth as well as any employee of a Commonwealth Authority or an individual
who is contracted to or is an officer or employee of a service provider contracted to the
Commonwealth.
The offence applies whether or not the conduct constituting the offence occurs in Australia,
whether or not it was conducted by an Australian citizen or body corporate, and whether or
not a result of the conduct constituting the offence occurred in Australia.
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Under Division 142 of the Criminal Code, there is also an offence in respect of a
Commonwealth Public Official giving or receiving a corrupt benefit. This involves similar
elements to the offence of dishonestly providing a benefit to a Commonwealth Public Official
except that it does not involve an intention to influence. Instead it involves the receipt or
expectation of the receipt of the benefit which would tend to influence the public official
in the exercise of the officials duties.
Extra-territorial application
Most State and Territory laws can apply extra-territorially if conduct constituting an element of
the offence occurs partly in the State or Territory, or if the conduct occurs wholly outside the
State or Territory but has an effect in the State or Territory.
The offence of bribing a foreign public official may be prosecuted where the requisite
conduct occurs outside of Australia but is committed by an Australian citizen or resident or
an Australian body corporate. Where the person alleged to have committed the offence is a
resident but not a citizen of Australia the Attorney General must give written consent to the
prosecution.
The offence of bribing a Commonwealth public official may be prosecuted where the conduct
occurs outside of Australia. Where the offence occurs wholly in a foreign country and the
person alleged to have committed the offence is neither an Australian citizen nor a body
corporate under the law of Australia, the Attorney General must give written consent to a
prosecution.
Defences and mitigation measures
In relation to the offences discussed above, where a corporation is prosecuted because
the contravening conduct was authorised or permitted (whether expressly or tacitly),
the corporation will not be found guilty of an offence if it can prove that it exercised due
diligence to prevent the conduct, the authorisation or permission. This will typically involve
the corporation maintaining and implementing compliance programs and anti-corruption
policies.
A person is not criminally responsible for an offence if it is carried out under duress (which
involves having a reasonable belief that a threat made will be carried out) or is in response
to circumstances of sudden or extraordinary emergency. In each case the conduct must be a
reasonable response to the threat or emergency.
It is a defence to prosecution for bribery of a foreign public official if the benefit or advantage
was permitted or required by the written laws that govern the foreign public official (Division
70.3). It is not sufficient to demonstrate that the benefit or advantage is consistent with
business culture.
Penalties
Individuals who are found guilty of bribing a foreign public official will be liable to a
maximum of 10 years imprisonment, a fine of AU$1.1 million or both except in the case of
incitement (that is, persistently urging a person to commit an offence) for which the penalty is
imprisonment for not more than five years or a fine of AU$33,000 or both.
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Australia
Corporations found guilty of bribing a foreign public official may be subject to even more
onerous pecuniary penalties of the greater of:
AU$11 million
three times the value of any benefit that the corporation has directly or indirectly obtained
that is reasonably attributable to the conduct constituting the offence (including the
conduct of any related corporation)
if the court cannot determine the value of that benefit, 10 per cent of the annual turnover
of the corporation during the 12 months preceding the offence.
Individuals who are found guilty of dishonestly providing or offering to provide a benefit to
a Commonwealth Public Official, or a Commonwealth Public Official who is found guilty of
dishonestly asking for, receiving or obtaining a benefit, will be liable to imprisonment for not
more than 10 years or will receive a fine of not more than AU$1.1 million or both, except in
the case of incitement for which the penalty is imprisonment for not more than five years or a
fine of not more than AU$33,000 or both.
Corporations found guilty of dishonestly providing or offering to provide a benefit to a
Commonwealth Public Official may be subject to pecuniary penalties which are identical to
those in respect of bribing a foreign public official, described above.
Individuals who are found guilty of giving or receiving a corrupt benefit in relation to a
Commonwealth Public Official will be liable to a maximum of five years imprisonment or a
fine of not more than AU$33,000 or both. Corporations found guilty of this offence may be
subject to a fine of not more than AU$165,000.
Under State and Territory laws individuals found guilty of bribery offences will generally be
liable to a maximum of between three and 10 years imprisonment or fines (there is some
variation between States and Territories). Corporations found guilty of bribery offences are
liable to substantial fines.
Further, in some States individuals and corporations can also be ordered to repay the value
of any benefit received.
Facilitation payments, hospitality and gifts
Currently, the Criminal Code permits facilitation payments for the performance of a routine
Government action of a minor nature if the payment is of a minor value (Division 70.4). A
corporation or individual who makes a facilitation payment must record that payment under
Division 70.4(3) as soon as practicable after the conduct, and the record must adhere to
the Sections requirements. Failure to adhere to the exact requirements will result in the
payer not having recourse to the defence. Routine Government action does not include
any decision to award or continue new business, and the person receiving the payment
does not need to have a legal entitlement to the payment for this defence to be available.
Difficulties with this defence include identifying the exact recipient of the payment, as well as
determining whether the payment was in fact a minor benefit.
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However, in a consultation paper released in November 2011, the Australian Government has
outlined its proposal to remove the facilitation payment defence under Division 70.4 in order
to align Australian anti-bribery laws more closely with the UK Bribery Act 2010. It has been
stated that this will bring the law into line with international best practice. This reform and
others, which ensure that bribery is an offence irrespective of the value or benefit offered and
that prosecutions can proceed where the recipient of a bribe cannot be identified, are being
considered.
Corporate liability for the acts of subsidiaries, employees and third parties
A body corporate can commit any of the offences discussed above and also be held criminally
responsible for the actions of its employees, officers or agents (which could include a
subsidiary) acting within the actual or apparent scope of their employment or authority.
In addition, an act of foreign bribery committed by an employee can be attributed to the
company if it can be shown that the company created and maintained a corporate culture
which resulted in the conduct occurring.
Authorisation or permission can be established by proving:
that the board of directors intentionally, knowingly or recklessly carried out the conduct or
expressly, tacitly or impliedly authorised or permitted the commission of the offence
that a high managerial agent intentionally, knowingly or recklessly engaged in the conduct
or expressly, tacitly or impliedly authorised or permitted the offence
that a corporate culture existed that directed, encouraged, tolerated or led to the
commission of the offence
that the company failed to create and maintain a corporate culture that required
compliance.
A corporations criminal responsibility also extends to situations where the corporation
attempts to commit the offence, aids, abets, counsels, procures or incites the commission of
the offence or conspires to commit the offence.
Liability of individual directors and officers
A director or officer of a corporation can be prosecuted for an offence committed by
the corporation if the director or officer, aids, abets, counsels or procures or incites the
commission of the offence by the corporation or conspires with another person to commit
the offence. The director or officer must also have intended that his or her conduct would
aid, abet, counsel or procure or incite the offence or conspired in the commission of the
offence. It will not be adequate for that director or officer to simply have failed to engender an
appropriate corporate culture.
Anti-money laundering legislation
The Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (AML Act) was
introduced in response to a critical FATF report that Australia was materially non-compliant
with the FATFs 40+9 recommendations. The legislation requires customer identification,
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Australia
verification and ongoing due diligence, transaction monitoring, suspicious transaction
reporting, record keeping, and AML/CTF risk based reporting and compliance programs.
In many cases, the money laundering offences catch a wider range of conduct such as
receiving, possessing or disposing of money or other property that is merely reasonably
suspected of being proceeds of crime. This means that the payment or receipt of a bribe
may also infringe the AML Act. The Crimes Legislation Amendment (Serious and Organised
Crime) Act (No 2) 2010 also amends the various money laundering offences to extend them
to individuals or corporations who deal with proceeds or suspected proceeds of a criminal
offence (such as foreign bribery) while overseas. This amendment means that Australian
individuals and companies are at risk of prosecution for money laundering offences, even if
the relevant proceeds never enter Australia. The penalty for the offence of dealing with money
or property valued at more than AU$100,000 that is reasonably suspected of being proceeds
of crime has also been increased to three years imprisonment or a fine of AU$19,800 or both
for individuals and AU$99,000 for companies.
These amendments expand the ability of the Australian Federal Police to investigate and
prosecute Australian companies suspected of involvement in foreign bribery. Further, if it is
suspected that a benefit has been gained as a result of corrupt conduct, property or assets
may also be seized under the relevant Proceeds of Crime legislation.
Whistleblowing legislation
Part 9.4AAA of the Corporations Act 2001, which was introduced in 2004 in response
to a critical report by the Australian Prudential Regulation Authority (APRA), contains
detailed whistleblowing provisions. An officer, employee or contractor will be a protected
whistleblower provided that:
pre-disclosure identification is given
there are reasonable grounds for suspecting breaches of the Corporations Act, the ASIC Act
or the relevant court rules and the revelations are made in good faith
disclosures are made to the Australian Securities and Investments Commission (ASIC), the
companys auditors, a director, secretary or senior manager or a nominated person.
A protected whistleblower will have extensive protection against retaliation, defamation or
any other civil or criminal liability for making the revelation.
A protected revelation must be handled in a prescribed manner. It can be passed on to
ASIC, APRA or the Australian Federal Police without the whistleblowers consent but only to
someone else with consent.
Equivalent protections are contained in Part 29A of the Superannuation Industry (Supervision)
Act 1993.
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Enforcement agencies
Anti-bribery
Responsibility for investigating corruption offences is divided between the State and Territory
police forces, the Australian Federal Police and specialised bodies such as the Australian
Crime Commission and ASIC. Once an investigating body has completed its investigation of
a corruption offence, the case is referred to the relevant Director of Public Prosecutions, who
makes an independent assessment whether to prosecute the case.
AML/CTF
The Australian Transaction Reports and Analysis Centre is the primary AML/CTF regulator and
compliance enforcement agency. n


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China
China
Contributed by Norton Rose Group
TI rankings
75th on the CPI. 27th on the BPI.
International anti-corruption conventions and inter-governmental
organisations
Ratified UNCAC. Member of ADB/OECD Asia Pacific Anti-Corruption Initiative. Ratified
UNCTOC. Member of FATF.
Anti-Bribery legislation and major offences
Legislation
The existing anti-bribery regime consists of a patchwork of legislation, with overlapping
regimes, including:
the PRC Criminal Law (which punishes the most serious cases of bribery)
the PRC Unfair Competition Law (which covers cases of bribery undertaken by business
operators for a business purpose which can be criminal or non-criminal in nature)
the Interim Regulations on Prohibition of Commercial Bribery issued by the State
Administration for Industry and Commerce
other relevant interpretations issued by the Supreme Peoples Court, the Supreme Peoples
Procuratorate or the State Administration for Industry and Commerce
regulations issued by the Communist Party of China, targeted at officials who do not
necessarily participate in bribery but act passively, ie, do not take action against bribery
and corruption in the jurisdiction under their authority.
Criminal bribery
The PRC Criminal Law sets out eight different types of criminal bribery, distinguished by
their type (active or passive) and the parties involved. Where the party receiving the bribe
is a public official or entity, this will constitute an offence of Official bribery. Where the
party receiving the bribe is a private individual or entity, this will constitute an offence of
Commercial bribery.
On 25 February 2011, the PRC National Peoples Congress passed an amendment to the PRC
Criminal Law setting out a clear prohibition on the payment of bribes to foreign officials and
officials of international public organisations (the Amendment). The Amendment came into
effect on 1 May 2011. The Amendment consists solely of one additional sub-article to the PRC
Criminal Law which provides as follows:
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whoever provides property to a foreign official or an official of an international public
organisation for the purpose of seeking an improper commercial benefit, will be punished in
accordance with the provisions applicable to commercial bribery.
The Amendment has not been inserted into the Graft and Bribery chapter of the PRC
Criminal Law which deals with corruption of public officials (where one may ordinarily expect
it to be placed) but in the Crimes against the Order of Socialist Market Economy chapter,
which deals with Commercial bribery.
While at first glance the placing of the Amendment in the PRC Criminal Law may appear
surprising, it is consistent with Chinas obligations under the UNCAC. Moreover, by stating
that the purpose of the bribe should be the receipt of an improper commercial benefit, the
Amendment itself suggests that an offence will only be committed when the purpose of the
bribe is of a commercial nature.
Both companies and individuals can be punished under the Amendment.
In accordance with Articles 6 and 7 of the PRC Criminal Law, the Amendment will be
applicable to PRC nationals both in the PRC and outside the PRC, and all PRC companies (and
their managers) which carry business overseas (including Sino-foreign joint ventures, and
wholly foreign-owned enterprises).
The Amendment will empower the Chinese authorities to exercise greater vigilance in
monitoring the overseas activities of all PRC companies and PRC nationals when carrying
on business outside of China. Chinese authorities will be able to conduct thorough
investigations in China when they suspect that an offence may have been committed.
Unfortunately, the Amendment provides little detail on the behaviour that will actually be
prosecuted by PRC authorities, or the prosecution thresholds, potential affirmative defences
and potential exemptions. Implementing rules are expected to provide guidance and greater
legal certainty regarding the operation of the Amendment in due course.
Official bribery
Official bribery is punished as a crime under the following articles of the PRC Criminal law:
acceptance of a bribe by a public official (Article 385)
acceptance of a bribe by a public entity (including state-owned enterprises and other
public entities) (Article 387)
active bribery of a public official by an individual (Article 389)
active bribery of an entity by an individual or an entity (Article 391)
active bribery of a public official by an entity (Article 393)
serving as an intermediary in the commission of an illegal bribe (Article 392).
The key provisions relating to public official bribery are Articles 385 and 389 of the PRC
Criminal Law (the Official bribery rules). Under the Official bribery rules, a person is deemed
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China
to have committed an offence of Official bribery if they have given articles of property to
state functionaries in order to seek illegitimate benefit. The sanctions for individuals who
commit Official bribery range from short-term detention to life imprisonment. The courts may
also impose fines upon individuals or companies, and confiscate property.
The offence must concern state functionaries. This term state functionaries is defined in
Article 93 of the PRC Criminal Code to include:
persons who perform public service in state organs (in the legislative, administrative or
judicial branches or the military), in state-owned enterprises or units, or state institutions
such persons assigned by state-owned entities to companies, enterprises or institutions
not owned by the state to perform public services
other persons who perform public services according to law.
The definition is relatively wide. It not only refers to public servants or officials in the state
organs but also includes employees in state-owned enterprises and other state institutions.
Strictly speaking, state functionaries are not allowed to take any bribes no matter how small
the amount involved. However, as clarified by a circular issued by the Guidelines for Bribery
Prosecution Standards issued by the Supreme Peoples Procuratorate on 22 December
2000, official bribery cases will generally only be prosecuted if the amount at stake is over
RMB10,000. Nevertheless, where the amount at stake is less than RMB10,000, the person
giving the bribe is likely to be prosecuted if the purpose of the bribe was to seek illegal
interests, if the bribes were given to a communist party official or Government leader, a
member of the judiciary or police, or if more than three people at the same time have been
bribed or if the bribery actions heavily damaged national or social interests.
Commercial bribery
The term Commercial bribery refers to acts of unfair competition committed by private
individuals or companies. There is both a criminal and a non-criminal offence of Commercial
bribery. For Commercial bribery to constitute a criminal offence under the PRC Criminal Law,
the value of the transaction must be relatively large:
at least RMB10,000 where committed by an individual
at least RMB200,000 where committed by a company or other organisation.
An individual convicted of the criminal offence of Commercial bribery may be imprisoned
for up to ten years and a fine. Companies and organisations may be fined, and officers or
employees of the company or organisation who were directly responsible for commissioning
the offence may be punished in the same way as private individuals.
The Unfair Competition Law and Commercial Bribery Regulations give a broader definition
of Commercial bribery than the PRC Criminal Code. Article 8 of the Unfair Competition
Law provides that business operators commit Commercial bribery if they offer business
counterparts property or use other means to purchase or sell products in a manner that
excludes competition.
22 Norton Rose Group
Anti-corruption laws in Asia Pacific
Under the Commercial Bribery Regulations the term property includes cash, assets and
disguised kickbacks (such as commission, payments for promotion, sponsorship, research,
or consultancy services). Other means includes benefits such as subsidies for travel or
entertainment.
Given the broad definition of Commercial bribery under the Unfair Competition Law and the
Commercial Bribery Regulation, the giving of practically any gifts or benefits conferred in a
commercial context is capable of constituting Commercial bribery.
Defences and mitigation measures
There are two exceptions to non-criminal Commercial Bribery:
discounts or commissions to intermediaries are permitted if they are recorded in a
companys financial accounts
promotional goods of small value are permitted if they accord with commercial practice.
The use of third party agents for liaising with Government entities, applying for approvals,
bidding for public procurement, etc, is ubiquitous in the PRC. The work of such agents should
be closely monitored to ensure that no grey payments are made as any bribery offences
committed by the agent will ultimately effect the company itself. Anti-bribery representations
and warranties should also be included in any third party agency agreement.
There is no provision in PRC anti-bribery regulations stating that the implementation of
anti-bribery measures by a company could provide a defence against prosecution by local
authorities and the courts. However, since 2009 the PRC Government has initiated a new
anti-corruption campaign, targeted indiscriminately at officials, state-owned enterprises,
and domestic and foreign private companies. All business operators will be expected to
have taken adequate measures in response to this campaign, including codes of conduct,
employee policies, training, etc. The absence of such measures will be viewed unfavourably
by local authorities, from both a political and legal perspective.
In practice, the implementation of bribery prevention measures by a company may be
presented to the authorities or the courts as evidence that the illegal actions of the
companys agents were contrary to the companys regulations and serve to prevent a
prosecution of individuals from becoming a prosecution of the company.
Penalties
Individuals found guilty of Official bribery may be imprisoned for up to life imprisonment.
The courts may also impose fines upon individuals or companies, or confiscate property.
Commercial bribery is punished as a crime under the following articles of the PRC Criminal law:
acceptance of a bribe by a non-public official (Article 163)
active bribery of a non-public official by an individual or an entity (Article 164).
While Official bribery is always considered a crime, no matter how small the bribe may
be, Commercial bribery is only considered a crime where the amount offered as a bribe
is relatively large (as discussed above). Non-criminal Commercial bribery (eg, bribery
Norton Rose Group 23
China
that does not exceed the threshold amounts) will be investigated and prosecuted under
administrative regulations set out below.
An individual convicted of the criminal offence of Commercial Bribery may be imprisoned for up
to ten years and liable to pay a fine (of undefined value). Companies and organisations may be
fined, and officers of employees of the company or organisation who were directly responsible
for commissioning the offence may be punished in the same way as private individuals.
The penalty for individuals, companies and organisations guilty of the non-criminal offence
of Commercial Bribery is a fine of between RMB10,000 and RMB200,000, and confiscation of
any income generated from the illegal conduct.
Facilitation payments, hospitality and gifts
Facilitation payments are not permissible under PRC law. Internal regulations prohibit public
officials from receiving any gifts over a certain value, and require public officials to hand over
such gifts to the State if they cannot be returned to the giver.
Entertainment and hospitality should be considered offers of property, and shall not be
provided to public officials for the purpose of obtaining an illegitimate benefit. Similarly,
hospitality and entertainment which are provided to private individuals or companies may
constitute the criminal or administrative offence of Commercial Bribery if the corresponding
thresholds are met.
Corporate liability for the acts of subsidiaries, employees and third parties
In China, corporates can be held liable for the acts of their employees, directors and officers
under criminal, administrative and civil regulations.
Under Article 30 of the PRC Criminal Law, any entity which commits a crime can be held
criminally liable for this crime and fined accordingly. Although certain offences of the Criminal
Law can only be committed by entities, the Supreme Court of the PRC has clarified that any
crimes committed by the officers, employees and agents of an entity can be treated as crimes
committed by the entity itself, if:
the crime is committed on behalf of the entity
the crime is committed for the benefit of the entity
there is a gain of illegal income by the entity.
Under civil regulations, corporates will also be held responsible for the actions of their
employees, directors and officers. In particular, Article 43 of the General Principles of the
Civil Law of PRC provides that an enterprise as a legal person shall bear civil liability for the
operational activities of its legal representatives and other personnel. In addition, Article 63
of the General Principles of the Civil Law of PRC provides that corporates shall also be liable
for acts of their appointed agents. Finally, the Interim Regulations of the State Administration
for Industry and Commerce on Prohibition of Commercial Bribery issued by SAIC provide that
24 Norton Rose Group
Anti-corruption laws in Asia Pacific
the conduct of commercial bribery by the staff of a business operator for the purpose of sale
or purchase of commodities shall be regarded as the conduct of the business operator.
As can be seen from the regulations quoted above, the PRC legal framework enables
authorities and courts to hold companies responsible for the acts of their agents. However,
the authorities and the courts will also consider separately the liability of agents and
companies with a view to protecting jobs and the local economy.
Liability of individual directors and officers
Directors and legal representatives are at risk of individual liability for PRC companies
activities.
The duties and liabilities of directors and legal representatives are set out in the PRC
Company Law (PRC Company Law). Directors and legal representatives are required to
perform their duties faithfully, to uphold the interests of the company and to refrain from
using their position in the company to seek personal gain, or to accept bribes or other illegal
income (Article 148 of the PRC Company Law).
Article 149 of the PRC Company Law specifies the following types of conduct as constituting a
breach of legal representatives and directors duties towards the company:
misappropriate the funds of the company
deposit the funds of the company in a bank account opened in their personal name or in
the name of another individual
in violation of the articles of association of the company, lend the funds of the company to
other persons or offer company property as security for other persons unless consent has
been given at a shareholders meeting, a shareholders general meeting or by the board
of directors
take advantage of their position in the company to seek for themselves or other persons
commercial opportunities that belong to the company, or operate by themselves or for
another person the same type of business as the company, unless consent has been given
at a shareholders meeting or shareholders general meeting
accept as their own the commissions of a transaction between the company and other
persons
disclose company secrets without authorisation
other acts that violate their fiduciary obligations to the company.
The PRC Company Law explicitly stipulates that all the income that a director or legal
representative may derive from violating the provisions of Article 149 of the PRC Company
Law shall belong to the company.
Norton Rose Group 25
China
In addition to the above, some specific rules apply to legal representatives of companies.
PRC Company Law specifies that a companys legal representative may be subjected
to administrative sanctions and fined and, if the offence constitutes a crime, criminal
responsibility shall be investigated in accordance with the law, if the company has:
conducted illegal operations beyond the range approved and registered by the registration
authority
concealed facts from the registration and tax authorities and practised fraud
secretly withdrawn funds or hidden property to evade repayment of debts
disposed of property without authorisation after the enterprise is dissolved, disbanded or
declared bankrupt
failed to apply for registration and make a public announcement promptly when the
enterprise undergoes a change or terminates, thus causing interested persons to suffer
heavy losses
engaged in other activities prohibited by law, damaging the interests of the State or the
public interest.
Legal Representatives and Directors liability to compensate the company and
shareholders
Article 150 of the PRC Company Law provides:
if a director of the company violates laws or administrative regulations or the companys
articles of association in the execution of company duties and causes losses to the company,
he shall be liable for compensation.
Under the PRC Company Law, shareholders may employ significant private enforcement
mechanisms against management indiscretions. If a director or legal representative commits
an offence under Article 150, any shareholder (in the case of a limited liability company)
or shareholders holding jointly or independently one per cent of the shares (in the case of
a company limited by shares), may require the supervisor or the supervisory board of the
company to institute proceedings against this director or legal representative in a Peoples
Court, in order to recover the losses caused to the company.
Additionally, if in violation of laws or administrative regulations or the companys articles of
association, a director or the legal representative harms the interests of a shareholder, the
shareholder may institute proceedings in a Peoples Court to recover its losses.
Legal Representatives and Directors liabilities under the PRC Criminal Law
Several PRC Company Law provisions impose criminal liability.
In addition, the PRC Criminal Law pierces the corporate veil by providing that where an entity
engages in criminal activity, penalties can be imposed on both the entity and the personnel
in charge.
26 Norton Rose Group
Anti-corruption laws in Asia Pacific
The PRC Criminal Law stipulates penalties for crimes committed against companies or
crimes arising from the acts of directly responsible person(s) in charge and other directly
responsible person(s) in the course of business. Neither directors nor legal representatives
bear criminal liability by virtue of their office, but may do so if they are held by the court to be
directly responsible person(s) in charge or other directly responsible person(s). Directors
or legal representatives who are acting in good faith and without negligence are not criminally
responsible for proscribed activities in the course of performing their duties.
Where they are deemed guilty of wrongdoing, directors and legal representatives may be
punished by criminal detention and heavy fines. If they are mere accomplices, they may
receive a lesser punishment, for instance:
presenting falsified accounts: up to three years of prison
concealing assets or presenting falsified accounts in the course of liquidation: up to five
years of prison
receiving bribes: up to five years of prison and confiscation of the bribe
misappropriation of funds: up to 10 years of prison and confiscation of the
misappropriated funds
money laundering: up to five years of prison and confiscation of the laundered money.
Anti-money laundering legislation
The PRC Anti-Money Laundering Law (the AML Law) came into effect on 1 January 2007,
the year China became a member of FATF. The AML Law aims to prevent money laundering
activities which attempt to conceal or disguise, by any means, the sources of proceeds
generated from criminal activities, including drug-related crimes, organised crimes, terrorist
crimes, smuggling, corruption, bribery and financial fraud. The AML Law and the PRC Criminal
Law form the basic legal framework for the prevention, monitoring, regulation, investigation
and punishment of money laundering activities in China. The primary target of anti-money
laundering legislation in China remains financial institutions who must implement certain
measures (eg, maintaining client identity systems, establishing internal control systems
designed to prevent and detect money laundering activities and reporting suspicious
transactions) to fulfil their anti-money laundering obligations under the AML Law and related
rules and regulations. Non-financial institutions are monitored but to a lesser extent.
Anti-money laundering obligations of financial institutions
A financial institution must implement measures to fulfil its anti-money laundering
obligations under the Law and related rules and regulations. The main measures are set
out below.
Establish a designated anti-money laundering department: a financial institution must
establish a special department or designate an existing internal department to handle anti-
money laundering matters.
Norton Rose Group 27
China
Establish a client identity identification system: a financial institution must establish a
client identity identification system to identify and verify the identity of any client who
wishes to become a client of the financial institution.
Retain documentary records: a financial institution must retain records of a clients
identification documents and transaction documents (including any account books) for a
period of time. The duration of such period of time varies depending on the type of industry
to which the financial institution belongs.
Establish an internal control system: a financial institution must establish an internal
control system, formulate internal operating procedures and control measures for the
purposes of preventing potential money-laundering activities and monitoring compliance
with the anti-money laundering obligations of financial institutions under the Law.
Report large-sum transactions: a financial institution must report to the relevant authority
any transaction involving a large sum of money in Renminbi or a foreign currency.
Report suspicious transactions: if a financial institution reasonably suspects that the
assets involved in any transaction are connected with a crime, it must submit a written
report to the local branch of the Peoples Bank of China and the local public security
bureau.
Provide training to employees: a financial institution must provide training to its employees
on the anti-money laundering obligations of financial institutions under the AML Law.
Investigations
If the Peoples Bank of China or (as the case may be) its branch department at the relevant
provincial level suspects that a financial institution is involved in money laundering activities,
it may conduct an investigation. During the course of the investigation, personnel of the
financial institution may be interrogated. The investigators conducting the investigation may
review and make copies of materials related to the financial institution or person(s) under
investigation. Furthermore, client accounts which are relevant to the investigation may be
temporarily frozen.
Legal consequences of a breach of the AML Law
If a financial institution in China breaches its anti-money laundering obligations under
the AML Law, the relevant PRC Government authority has the right to order the financial
institution to cure the breaches within a limited period of time. In serious cases, a fine of
up to RMB 5 million may be imposed. In addition, the relevant PRC Government authority
has the right to order the financial institution to (i) impose a disciplinary sanction on its
directors, senior managers and any other persons responsible for the breach, (ii) remove
them from their current positions or (iii) prohibit them from working in the financial industry
sector. Furthermore, a fine of up to RMB 500,000 may be imposed. In exceptionally severe
circumstances, the Government authorities may order the financial institution to (i) suspend
its business operations while rectifying the breach or (ii) revoke its business licence.
28 Norton Rose Group
Anti-corruption laws in Asia Pacific
Anti-money laundering obligations of non-financial institutions
Prior to the AML Law, anti-money laundering obligations were only imposed on banks and
financial institutions. Since the AML Law came into effect on 1 January 2007, anti-money
laundering obligations may also be imposed on non-financial institutions, such as law firms,
real estate institutions, payment providers, and other businesses. Detailed implementing
rules on the specific anti-money laundering obligations of these professions are anticipated.
Whistleblowing legislation
China has established high profile 24-hour corruption hotline reporting systems with many
Government entities including the Public Security Bureau, the Bureau of Administration for
Industry and Commerce, and various court and prosecution departments. Hotline numbers
and email addresses are easily accessible and have been made public in many regions. To
ensure the proper use of public money and effective prevention of corruption in construction
projects, China has introduced the Audit Law which entitles auditors to track and supervise
the use of funds by companies and projects that have access to public money. Construction
projects where Government investment exceeds 50 per cent, or those with less than 50 per
cent Government investment but where construction and operation is Government controlled,
must agree to be audited.
Enforcement agencies
Anti-bribery
Responsibility for enforcing anti-bribery regulations lies principally with the police and the
Peoples Courts. However, given the political importance of the fight against corruption
(and the extent of the practice) a wealth of other official institutions also retain significant
roles in the enforcement of anti-bribery measures and definition of anti-corruption efforts,
especially for national-level or politically-sensitive cases, such as (i) the National Bureau
of Corruption Prevention (established in September 2007), (ii) the Ministry of Supervision,
(iii) the State Administration for Industry and Commerce, (iv) the General Administration
for Combating Embezzlement and Bribery, (v) the Department for the Prevention of Crimes
by State Functionaries (the last two being under the supervision of the Supreme Peoples
Procuratorate), and (vi) the CPC Central Commission for Discipline Inspection. All of these
institutions also have provincial or local agencies.
Anti-money laundering
The main institution in charge of enforcing anti-money laundering regulations and conducting
investigations of financial institutions is the Anti-Money Laundering Bureau of the Peoples
Bank of China. The Bureau regularly conducts investigations and imposes fines on infringing
financial institutions. n
Norton Rose Group 29
Hong Kong
Hong Kong
Contributed by Norton Rose Group
TI rankings
12th on the CPI. 15th on the BPI.
International anti-corruption conventions and inter-governmental
organisations
The Central Peoples Government of the Peoples Republic of China has declared that UNCAC
and UNCTOC shall apply to Hong Kong. Member of ADB/OECD Asia Pacific Anti-Corruption
Initiative. Member of FATF.
Anti-bribery legislation and major offences
Legislation
The Prevention of Bribery Ordinance (POBO) is the primary anti-corruption legislation in Hong
Kong. The POBO is directed at the corruption of public officers (public sector offences) and
corrupt transactions with agents which includes employees of private companies (private
sector offences).
The Independent Commission Against Corruption Ordinance (ICACO) sets out the scope and
parameters of the Independent Commission against Corruption (ICAC), being the principal
agency responsible for tackling corruption in Hong Kong.
Private sector
Private sector bribery offences under the POBO relate to corrupt transactions with agents and
include carrying out the following acts without lawful authority or reasonable excuse:
a person offering an advantage to an agent without the permission of his principal, in
connection with his performance or abstaining from performance of any act in relation to
his principals affairs or business (Section 9 of the POBO)
as an agent soliciting or accepting an advantage in connection with his performance or
abstaining from performance of any act in relation to his principals affairs or business
(Section 9 of the POBO).
Public sector
Public sector bribery offences under the POBO include carrying out the following acts:
any prescribed officer who, without permission of the Chief Executive, solicits or accepts
any advantage (Section 3 of the POBO)
any person who, whether in Hong Kong or elsewhere, without lawful authority or
reasonable excuse offers an advantage to a public servant or the Chief Executive, in
30 Norton Rose Group
Anti-corruption laws in Asia Pacific
connection with the performance or abstaining from performance of any act in his capacity
as a public servant or the Chief Executive (Section 4 of the POBO)
any public servant or the Chief Executive who, whether in Hong Kong or elsewhere, without
lawful authority or reasonable excuse, solicits or accepts an advantage in connection
with the performance or abstaining from performance of any act in his capacity as a public
servant or the Chief Executive (Section 4 of the POBO).
In addition, there are specific public bribery offences relating to the giving of assistance
in relation to contracts, bribery for procuring withdrawal of tenders, bribery in relation to
auctions and bribery of public servants by persons having dealings with public bodies. It
is also an offence for the Chief Executive (or a prescribed officer) to be in possession of
unexplained property.
The POBO details a large number of entities which are considered public for the purposes
of the POBO. These include a number of private companies or entities that carry out a public
function in Hong Kong.
As a matter of common law, it is an offence to bribe a person performing a public duty or for
such a person to solicit or accept a bribe. It is also an offence at common law for a person in
public office to misconduct himself in the course of his public duties.
Extra-territorial application
Under Section 4 of the POBO, any person who, whether in Hong Kong or elsewhere,
bribes the Chief Executive or any Hong Kong public servant will have committed an offence.
Accordingly, the POBO expressly has extra-territorial effect with respect to the public bribery
offences under this Section.
The private sector bribery offences under Section 9 of the POBO do not expressly have extra-
territorial effect. However, where such an offence is committed outside Hong Kong resulting
in a flow of criminal proceeds, this may give rise to an offence under Hong Kongs anti-money
laundering legislation and may also trigger whistleblowing obligations under such legislation
(see below).
Bribery of foreign public officials in Hong Kong is not specifically prohibited under the
POBO. However, foreign public officials may be caught under the broad definition of agent
under the POBO, which includes any person employed by or acting for another. The Hong
Kong Court of Final Appeal has confirmed that it is an offence for a foreign public official to
solicit or accept an advantage in Hong Kong without his principals informed consent in
connection with the performance or abstaining from performance of any act in his capacity
as a foreign public official in that place outside Hong Kong. The rationale underlying this
decision may also extend to foreign agents.
Defences and mitigation measures
With the exception of public officials accepting bribes, the substantive bribery offences
under Part II of the POBO have a built in statutory defence of lawful authority or reasonable
excuse. The phrases lawful authority and reasonable excuse are not defined in the
POBO and are not easy to construe or apply in practice. What amounts to lawful authority or
reasonable excuse will be fact specific and dependent on the individual circumstances of
each case.
Norton Rose Group 31
Hong Kong
The burden of proof in establishing the defence rests with the accused and the question to
be addressed is what lawful justification (ie, lawful authority or reasonable excuse) can there
be for offering a bribe or for accepting one. Commentary suggests that in practice, lawful
authority or reasonable excuse will invariably revolve around a principals consent having
been obtained or a belief that it would, could or had been obtained. Reasonable excuse
is an inherently vague term, but an honest and reasonable, although mistaken, belief in a
state of facts which, if true, would create a reasonable excuse defence to the charge. It is
not clear whether a companys attempts to put in place adequate anti-corruption procedures
would provide a defence of reasonable excuse to the company but it may impact the ICACs
decision on whether to prosecute.
Penalties
Maximum penalties for the above-mentioned offences under the POBO range from fines of
HK$100,000 to HK$1 million and imprisonment from one year to ten years (Section 12).
The Hong Kong courts have advocated the need for deterrent sentences, which means that
immediate custodial sentences are normal.
There are also penalties for failing to cooperate with the ICAC involving fines and/or
imprisonment.
Facilitation payments, hospitality and gifts
Under the POBO, it is not a statutory defence to show that an advantage is of de minimis
value or that it is customary in any profession, trade, vocation or calling to accept the
advantage. However, the Acceptance of Advantages (Chief Executives Permission) Notice
2010 provides that a prescribed officer may accept low value gifts (for example, traditional
gifts not exceeding HK$1,500 and other gifts not exceeding HK$250) where there are no
official dealings between the persons offering the advantage and the department or
organisation for which the prescribed officer works.
Corporate liability for the acts of subsidiaries, employees and third parties
Although the ambit of the POBO is wide enough to hold corporates liable for offences
committed by their employees, agents, etc, cases involving a prosecution against a corporate
in relation to the substantive bribery offences set out in Part II of the POBO are rare. Instead
prosecutions are usually brought against individuals.
Liability of individual directors and officers for acts of the company
There is no express provision under the POBO that attributes the liability of a company to its
directors or officers. Generally, individual directors are unlikely to be held vicariously liable
for the acts of the company or its employees under common law. Where individuals are the
controlling mind of the company, these individuals may be more vulnerable to pursuit by the
ICAC and the Department of Justice (DOJ) than the company and may be held liable for acts of
their company which amount to offences under the POBO.
32 Norton Rose Group
Anti-corruption laws in Asia Pacific
Under the Criminal Procedures Ordinance (CPO), where a director aids, abets, counsels
or procures the commission by the company/employees of any offences (including the
substantive bribery offences under Part II of the POBO), the director can be prosecuted for the
same offences.
Anti-money laundering legislation
Hong Kongs money laundering legislation currently includes the Organised and Serious
Crimes Ordinance (OSCO) and the Drug Trafficking (Recovery of Proceeds) Ordinance (DTO).
Under the OSCO, it is an offence where a person deals with property, knowing or having
reasonable grounds to believe that the property in whole or in part directly or indirectly
represents another persons proceeds of an indictable offence. Similarly, under the DTO it
is an offence where a person deals with property, knowing or having reasonable grounds to
believe that the property in whole or in part directly or indirectly represents another persons
proceeds of drug trafficking.
In addition, a person who knows or suspects that any property represents the proceeds of,
or was/will be used in connection with, an indictable offence/drug trafficking is required to
report this fact to a Hong Kong police officer or member of the Hong Kong Customs & Excise
Department. In practice such reports are usually made through the Joint Financial Intelligence
Unit (JFIU), a clearing house for suspicious transactions reports operated jointly by the Police
and Customs & Excise.
The substantive offences under the POBO, whether committed in or outside Hong Kong, may
constitute indictable offences for the purposes of the OSCO and may, therefore, trigger the
whistleblowing obligations imposed under the OSCO.
The new Anti-Money Laundering and Counter-Terrorist Financing (Financial institutions)
Ordinance (AMLO) will come into force on 1 April 2012. The AMLO will apply to various
financial institutions (and their employees) regulated by the Securities and Futures
Commission, the Hong Kong Monetary Authority or the Office of the Commissioner of
Insurance. Unlike under current anti-money laundering legislation, contravention of the
AMLO may result in criminal charges.
Whistleblowing legislation
Section 30A of the POBO guarantees whistleblowers anonymity in relation to offences
committed under the Ordinance. However, the right to anonymity may be revoked in the
following circumstances:
if the courts believe that justice cannot be done without revealing the identity of
the informer
if the whistleblower wilfully made a material statement that was not true, or which
was believed to be false
if the whistleblower is called as a witness to the proceedings.
Norton Rose Group 33
Hong Kong
Whistleblowing is not compulsory under the POBO and there is no provision stating that
whistleblowing leads to a reduction in the sentence of an offender, even if their act of
informing could lead to their prosecution. In practice, however, the DOJ will take any
information given by an offender into account when considering the prosecution or proposed
sentencing of an offender.
Whistleblowing is compulsory under the OSCO in relation to the knowledge or reasonable
belief of the proceeds of crime.
Enforcement agencies
The ICAC is the principal agency responsible for tackling corruption in Hong Kong through
investigation, prevention and community education. The ICAC is independent of the
civil service and is answerable directly to the Chief Executive of the Hong Kong Special
Administrative Region.
Pursuant to the ICACO, which sets out the scope and parameters of the ICACs investigative
powers and duties, the ICAC is under a duty to investigate any alleged or suspected offence
(or conspiracy to commit an offence) under, among other things, the POBO.
In the course of an investigation, the ICAC can, amongst other things:
by court order, require a witness to provide information and produce documents
arrest and require that person to attend interviews under caution
by court order, require a suspect to disclose details of property, expenditure and liabilities
generally, with the courts sanction, search premises and, with or without courts sanction,
seize evidence
by court order require a suspect to surrender his travel documents.
The ICAC may, without warrant, arrest a person if he reasonably suspects that that person is
guilty of an offence under the relevant legislation.
The ICAC has powers under the POBO to make an ex-parte application to the court for a
restraining order to freeze properties which may be the proceeds of a bribery/corruption offence
pending the conclusion of the investigation or any prosecution flowing from it. A restraining
order may cover property in the possession, or under the control, of the suspect as well as
property held by a third party for or on behalf of a suspect.
As an investigatory body, the ICAC is not able to impose any sanction or sentence itself. A
person under investigation by the ICAC will be prosecuted by the DOJ in the Hong Kong courts
for the relevant offence(s) if the DOJ considers that (i) the evidence is sufficient to justify the
institution of proceedings; and (ii) if the public interest requires a prosecution to be pursued.
34 Norton Rose Group
Anti-corruption laws in Asia Pacific
Apart from prosecutions, ICAC investigations sometimes result in cautions. Cautions are
administered to persons involved in minor cases that the DOJ considers not to be in the
public interest to prosecute. The offenders involved must have made full admissions of the
offences concerned. The ICAC also refers cases of misconduct or malpractice of civil servants
to Government departments for disciplinary or administrative action.
In terms of prevention, the ICAC has a statutory duty to examine the practices and procedures
of Government departments and public bodies and to secure the revision methods of work or
procedures which may be conducive to corrupt practices. It is also required by law to provide
corruption prevention assistance on request to any member of the public. n
Norton Rose Group 35
India
India
Contributed by Amarchand & Mangaldas & Suresh A. Shroff & Co.
TI rankings
95th on the CPI. 19th on the BPI.
International anti-corruption conventions and inter-governmental
organisations
Ratified the UNCAC and the UNCTOC in May 2011, but has not yet implemented either.
Member of ADB/OECD Asia Pacific Anti-Corruption Initiative, APG and FATF.
Anti-bribery legislation and major offences
Primary Legislation
The primary Indian legislation dealing with the offences of corruption and bribery is the
Prevention of Corruption Act, 1988 (PCA). The PCA criminalises the acceptance of gratification
(pecuniary or otherwise) other than the acceptance of legal remuneration by public officials
which is paid by their employers in connection with the performance of their duties. Aiding
and abetting the commission of bribery is also an offence. The provisions of the PCA apply
regardless of the location/jurisdiction of the commission of an offence under it, as long as
the same is committed by a public servant as defined under it. Further, the PCA creates an
adverse presumption if a public servants assets are disproportionate to his income.
The Indian Penal Code, 1890 (IPC), the primary Indian criminal legislation, also contains
provisions criminalising corruption and bribery, as well as the abetment of either offence.
Facilitating the commission of an offence under the PCA, as well as voluntary concealment of
facts by an illegal act or omission, or the making of a false representation that facilitates the
commission of an offence of corruption, are also punishable under the IPC.
In addition to the above, several service rules and codes of conduct regulate the conduct of
public officials. They set out disclosure obligations and thresholds for acceptance of gifts and
hospitality, etc. Examples of such codes of conduct include the All India Services (Conduct)
Rules, 1968 and the Directorate of Personal Services, Discipline and Welfare, 2006
(Regulations for the Air Force, 1964). Various Government departments also routinely issue
lists of Dos and Donts, and other procedures to be followed by public servants.
Facilitating and Enforcement Mechanisms
The operation of the above anti-corruption legislation is supported by the following key
statutes: (i) the Right to Information Act, 2005 (RTI); (ii) legislation empowering the Lok
Ayukta at the State level; and (iii) Central Vigilance Commission Act, 2003.
The RTI mandates that information under the control of a public authority be furnished to
any person who makes an application for the same under its provisions. The RTI provides for
certain limited exceptions.
36 Norton Rose Group
Anti-corruption laws in Asia Pacific
The Lok Ayukta is an authority constituted at the State level to investigate allegations of
corruption and maladministration against public servants.
The Central Vigilance Commission Act, 2003 governs the Central Vigilance Commission (CVC)
which is the apex anti-corruption enforcement institution in India, monitoring all vigilance
activity pertaining to the central Government and advising central Government organisations
in planning and executing their vigilance work.
The CVC is empowered to inquire into offences under the PCA. All proceedings conducted
by the CVC are deemed to be judicial proceedings and the CVC has all the powers of a
civil/criminal court with respect to the proceedings conducted by it. The Central Bureau
of Investigation also has an Anti Corruption Division that deals with cases of corruption
and fraud committed by public servants of Central Government Departments, Central Public
Sector Undertakings and Central Financial Institutions.
In addition to the above existing legislation, key proposed legislation includes: (i) the
proposed Lok Pal Bill; (ii) Prevention of Bribery of Foreign Public Officials and Officials
of Public International Organisations Bill, 2011; and (iii) proposed legislation to protect
whistleblowers as detailed separately below.
An evolving development in relation to anti-corruption legislation in India is the drafting of
the Lok Pal Bill which seeks to create an independent central ombudsman to investigate
offences and redress grievances related to corruption in India. This bill is proposed to be
passed at the 2011 winter session of the Indian Parliament. The contents of the Bill, including
exclusion of certain classes of officials, the ambit of its investigative body, punishment for
vexatious complaints, and several other key aspects of the bill are currently being debated
between the Government and other stakeholders, including civil society.
The Prevention of Bribery of Foreign Public Officials and Officials of Public International
Organisations Bill, 2011 that was proposed in May 2011 is yet to be passed. This bill is
intended to facilitate the implementation of the UNCAC in India.
In addition to the above legislation, a draft National Anti-Corruption Strategy (NACS)
prepared by the CVC was issued for public comment in September 2010. The NACS aims at
shifting the focus of anti-corruption legislation in India from a punitive approach to a more
holistic approach which inter alia involves preventive measures to minimise the scope for
corruption, strengthening legal and regulatory framework, capacity building in relevant
institutions and enhancing collaboration amongst all stakeholders to ensure that cases of
corruption or bribery are detected, reported, and prosecuted effectively.
Private sector
The provisions of the IPC are more suitable for application to private entities.
Public sector
The PCA is primarily directed at public officials.
Extra-territorial application
The provisions of the PCA would apply whenever an offence is committed. This may be
construed as an extra-territorial application of the PCA in a limited manner.
Norton Rose Group 37
India
Defences and safeguards
No action can be taken against a public servant under the provisions of the PCA unless
sanction for such action is obtained from the authority competent to remove the accused
person from office. This provision is intended as a safeguard against frivolous prosecution of
public servants.
Bona fide acts of public officials are protected from prosecution and/or conviction under
the PCA.
Penalties
The PCA permits the imposition of a penalty of imprisonment for a term of between six
months and seven years and a fine. Further, for repeated offences, imprisonment for a term of
between two and seven years and a fine may be imposed.
Under the IPC, bribery is punishable with imprisonment for a period of up to one year or a
fine or both. Criminal breach of trust committed by a public servant is punishable with
imprisonment for life, or simple/rigorous imprisonment which may extend to ten years, or
a fine. Criminal breach of trust as per the IPC, is the dishonest misappropriation/use of
property entrusted to a person in violation of any direction of law prescribing the mode in
which such trust is to be discharged, or of any legal contract entered into by such person,
express or implied. The abetment of offences under the IPC is punishable as though the
person who abetted the offence had committed it.
Corporate liability for the acts of subsidiaries, employees and third parties
The provisions of the PCA are applicable only to public servants.
Those of the IPC are applicable to all persons. Persons include any company or association
or body of individuals, whether incorporated or not.
Corporate criminal liability is recognised under Indian penal law. Such liability may be
attributed to a corporation if the person who commits such offence is someone who plays a
crucial role in the functioning of such corporation. In such cases, the corporation could be held
liable for an act committed by a director, officer or employee. The law laid down in Assistant
Commissioner, Assessment-II, Bangalore v Velliappa Textiles Limited [AIR 2004 SC 86] in this
regard is an example. In cases where the law prescribes imprisonment and fines as penalties
for criminal acts, courts can impose fines on a company which is found guilty of a crime.
The anti-corruption legislation does not specifically impose liability on corporate entities for
the acts of its employees and third parties.
Liability of individual directors and officers
The anti-corruption legislation does not specifically impose liability on directors and officers
of a corporate entity for the commission of an offence of corruption by a corporate.
Ordinarily, it is not possible to impose liability on a director or officer of a company even if
the company is guilty of having committed an offence of corruption. S.K. Alagh v State of Uttar
Pradesh [AIR 2008 SC 1731] is a case on this point.
38 Norton Rose Group
Anti-corruption laws in Asia Pacific
However, directors and officers of a corporation may be held liable for various offences,
including corruption, independently and in their individual capacities under relevant legislation.
Anti-money laundering legislation and reporting obligations
The Prevention of Money Laundering Act, 2002 (PMLA) is the principal Indian legislation to
combat money laundering. The PMLA and the rules notified under its provisions came into
force with effect from 1 July 2005.
The PMLA defines the offence of money laundering to include being involved in any process
or activity connected with the proceeds of crime and projecting it as untainted property.
The offence of money laundering is punishable with rigorous imprisonment for a term ranging
from three to five years and a fine. For certain offences, the penalty may be enhanced to
imprisonment for up to ten years.
Whistleblowing legislation
The PCA contains a provision prohibiting a whistleblower from being prosecuted if he
has made a statement to the police in a proceeding against a public servant. However, at
present, no specific whistleblowing legislation exists in India. Although the Whistle-Blowers
(Protection in Public Interest Disclosures) Bill which proposed to protect whistleblowers
and encourage the public to report corrupt practices was passed in 2006 by the Parliament,
the Act has not received the assent of the President that is required for it to become effective.
In August 2010, another similar bill (the Public Interest Disclosure and Protection to Persons
Making the Disclosure Bill, 2010) was discussed in the Parliament. However, the bill, if
passed, would apply only to corruption committed in public office, or by public officials
asopposed to the 2006 bill which would apply to the private sector. n
Norton Rose Group 39
Indonesia
Indonesia
Contributed by Susandarini & Partners (associate office of Norton Rose Group)
TI rankings
100th on the CPI, 25th on the BPI.
International anti-corruption conventions and inter-governmental
organisations
Ratified UNCAC and UNCTOC. Member of ADB/OECD Asia Pacific Anti-Corruption Initiative
and APG.
Anti-bribery legislation and major offences
Legislation
The primary piece of legislation is Law No 31 of 1999 regarding the Eradication of Criminal Act
of Corruption as amended by Law No 20 of 2001 (Indonesian Anti-Corruption Law). At present,
legislation has been presented to implement the OECD offence under Indonesian Law (New
OECD offence).
Public sector
Indonesian corruption laws primarily target public official corruption crimes and seek to cover
public corruption crimes in the widest sense. Article 2 of the Indonesian Anti-Corruption Law
stipulates that an act of corruption is committed by any person who or a business entity that
illegally enriches itself or another person or business entity, at the expense of the states
finances or economy. Article 3 of the Indonesian Anti-Corruption Law provides that any
person or business entity who derives benefits for themselves, others or any (other) business
entity by misusing their authority, resulting in an opportunity or facility being conferred upon
them by their office or their official status and which causes a loss to the states finances or
economy, is guilty of an offence.
Private sector
As mentioned above, the Indonesian Anti-Corruption Laws primary objective is to regulate
and prevent public officials from committing corrupt activities.
Extra-territorial application
Extra territorial application is explained in brief in the Indonesian Anti-Corruption Law and
is stipulated under Article 16. Any person or any corporation outside of the jurisdiction of
the Republic of Indonesia committing corruption contrary to the Indonesian Anti-Corruption
Law will be sanctioned to the same degree as any person or any corporation committing
corruption within the jurisdiction.
Defences and mitigation measures
Under Law No 30 of 2002 on Corruption Eradication Commission (Komisi Pemberantasan
Tindak Pidana Korupsi or KPK), gratification may be regarded as a defence or mitigation
measure. However, gratification must first be reported to KPK by the public official receiving
40 Norton Rose Group
Anti-corruption laws in Asia Pacific
the gratification. If KPK decides that the object of gratification should be considered to be
some sort of fee, it will be regarded as state property. However, in the unlikely event that the
gratification is considered to be peripheral in nature, it will be returned to the public official.
Penalties
Criminal sanctions under the Indonesian Anti-Corruption Law include life imprisonment or
a sentence ranging from one year to 20 years and a minimum fine of IDR 50 million to a
maximum of IDR 1 billion.
The Indonesian Anti-Corruption Law provides that where a person or business entity is
convicted of any offence, they must pay compensation to the state body or agency that
has borne the consequential loss as determined by the panel of judges hearing the case.
It should be noted that pursuant to Article 4 of Indonesian Anti-Corruption Law, a payment
of compensation is taken as a mitigating factor in the sentencing process. However, paying
compensation will not prevent imprisonment. Where a corrupt act is deemed to be committed
by a business entity, penalties may be imposed on the business entity and its management.
Facilitation payments, hospitality and gifts
The Indonesian Anti-Corruption Law does not deal specifically with hospitality payments, eg,
where an individual or a business entity pays for any accommodation, food or beverages for
a public official. With respect to gifts, Indonesian Anti-Corruption Law provides that any gift
to a public official must first be approved by the Commission on the Eradication of Corruption
(KPK). KPK will have the power to decide whether the public official may keep the gift or
consider the gift to be a state owned asset. Any undisclosed gift will amount to an offence.
There is no provision authorising facilitation payments.
Corporate liability for the acts of subsidiaries, employees and third parties
Under Article 20 of the Indonesian Anti-Corruption Law, any act of corruption made by or
made in the name of a business entity is punishable by criminal fine.
Law No 31 does not expressly state that a corporate may be liable for corrupt acts of its
subsidiaries, employees and third parties, however a broad interpretation of the wording in
Article 20(1) Law No 31 highlights that anyone helping a corporation whether a subsidiary,
employee or any third party may be punished under this law.
Liability of individual directors and officers
Under Article 20 of the Indonesian Anti-Corruption Law, any act of corruption made by or
made in the name of a business entity is punishable not only for the business entity but also
its management, ie, its board of directors and board of commissioners, as well as any officers
involved. It should be noted that sanctions for corporate corruption are criminal fines and
may result in closure of all or part of the company for a maximum duration of one year. The
corporations rights and Government issued facilities granted by the Republic of Indonesia
may also be wholly or partly revoked.
Norton Rose Group 41
Indonesia
Anti-money laundering legislation and reporting obligations
In 2002, Indonesia enacted Law No 15 of 2002 regarding the Crime of Money Laundering
which was amended by Law No 25 Year 2003, imposing anti-money laundering requirements
on financial institutions.
The law was replaced by the enactment of Law No 8 regarding the Prevention and Eradication
of Money Laundering Crime, in 2010 (the AML Law). The AML Law increased the role of
Indonesias financial intelligence unit, giving it a full range of anti-money laundering
regulatory and supervisory powers including sanctioning powers. The law also extended
the responsibility for investigating cases of money laundering beyond the national police
to include the KPK, Customs, the National Narcotics Agency, and the Taxation Directorate
General. Under the AML Law, KPK detectives have access to financial intelligence reports
processed by the Financial Transaction Reports and Analysis Centre (Pusat Pelaporan Dan
Analisis Transaksi Keuangan PPATK).
The provisions under the AML Law also enhance the PPATKs powers of investigation,
allowing it to freeze transactions as well as to collate, analyse and disclose suspicions of
money laundering. Financial service providers will be subject to a new reporting threshold
under the AML Law. Financial institutions must report any cross border financial transaction
and international fund transfer instructions to the PPATK with a minimum value equivalent to
IDR 500 million, regardless of whether there are any grounds for suspicion.
Whistleblowing legislation
Although no one specific piece of legislation refers to, or deals with, the protection of
whistleblowers, protection can be afforded in the form of Law No 13 of 2006 regarding the
Protection of Witnesses and Victims (Law No 13). Pursuant to Law No 13, an institution called
Witness and Victim Protection Institution (Lembaga Perlindungan Saksi dan Korban LPSK)
may be assigned and authorised to provide protection and other rights for witnesses and/
or victims. It should be note that even though Law No 13 was designed with the protection
of court witnesses in mind, and does not afford anonymity to whistleblowers, subject to the
discretion of LPSK, in certain cases, witnesses and/or victims may be given a new identity
and/or new domicile.
Enforcement agencies
Law No 30 of 2002 as amended by Government Regulation in lieu Law No 4 of 2009
established the KPK, to combat corruption crimes and a special anti-corruption court. The
KPK has the right to initiate investigations into corruption cases and bring them to the anti-
corruption court.
The AML Law requires financial institutions to submit suspicious transaction reports to the
Indonesian Financial Transaction Reports and Analysis Centre. n
42 Norton Rose Group
Anti-corruption laws in Asia Pacific
Japan
Contributed by Atsumi & Sakai
TI rankings
14th on the CPI. 4th on the BPI.
International anti-corruption conventions and inter-governmental
organisations
Ratified and implemented OECD Convention. Signed but has not yet ratified UNCAC. Member
of ADB/OECD Asia Pacific Anti-Corruption Initiative. Signed but has not yet ratified UNCTOC.
Member of FATF and APG.
Anti-bribery legislation and major offences
Legislation
The Unfair Competition Prevention Act (Act No 47 of 1993) (UCPA) criminalises the bribing
of foreign public officials. The Penal Code (Act No 45 of 1907) (Penal Code) criminalises the
bribery of domestic public officials.
Secondary anti-corruption legislation exists in the form of the National Public Service Ethics
Act (Act No 129 of 1999) (Ethics Act), which provides fundamental rules of national public
service, one of which is a rule prohibiting a public officer from receiving a bribe from any
person over whom the officer exercises his authority. The Ethics Act also sets out the cases in
which a public official is required to disclose and report the details of gifts or compensation
received. The National Public Service Ethics Code (Government Ordinance No 101 of 2000)
was established under the Ethics Act, and sets out the cases where a public official will be
prohibited from receiving gifts or entertainment from parties interested in the public officials
duties.
The Act Prohibiting Acceptance of Profits for Intermediation by those Engaged in Public
Service (Act No 130 of 2000) (Profits for Intermediation Act) criminalises influence peddling
by a member of the Diet, etc (see below).
Private sector
Surprisingly, private sector bribery (eg, bribery not involving public officials but agents
including, for example, employees of public companies) is not currently an offence under the
Penal Code. However, the Companies Act punishes the:
giving of a bribe to, or acceptance of a bribe by a director, or auditor, etc
giving or acceptance of a bribe in relation to exercise of rights of shareholders, etc
giving of benefits by a director or auditor, etc, at the cost of a company or its subsidiaries
in relation to the exercise of rights of shareholders.
Norton Rose Group 43
Japan
In addition, the Financial Instruments and Exchange Act punishes giving a bribe to, or
acceptance of a bribe by, an officer or official of a Financial Instruments Business Operator
and the Bankruptcy Law punishes giving a bribe to, or acceptance of a bribe by, a trustee
in bankruptcy.
Public sector
Bribery of Foreign Officials
In accordance with Japans ratification of the OECD Convention, the UCPA was amended in
1998 to provide for the criminalisation of the bribery of foreign public officials. However, in its
most recent report, Transparency International considered that there was a lack of awareness
of this new offence, especially within the legal profession.
If an individual Japanese citizen bribes a Foreign Official whether in Japan or elsewhere, in
respect of an offshore commercial transaction, he and his Japanese employer may be liable
to a fine under the UCPA. The elements of the UCPA offence require the giving, offering, or
making of a promise to give money or other benefits to a Foreign Official, for the purpose of
having the Foreign Official:
perform, or refrain from performing, a certain action relating to his duties
use his position to influence another Foreign Official to perform, or refrain from performing,
a certain action relating to his duties,
with the intent to obtain illicit commercial benefit or advantage as regards international
commercial transactions.
The UCPA does not criminalise the acceptance of bribes and accordingly, the Foreign Official
will not be liable under the UCPA. Broadly put, a Foreign Official is an officer of a foreign
Government or a foreign special institution, a state company or an international institution.
The UCPA has extra-territorial effect and this raises interesting issues as to the position of
sovereign wealth funds, which may be state companies under the UCPA. Dual criminality is
not required. Accordingly, the briber may be punishable under the UCPA even if the conduct
is not criminalised in the foreign state where it occurred.
Bribery of domestic public officials
If a public officer accepts, solicits or promises to accept a bribe in connection with his duties
(Acceptance of Bribes) or causes a bribe in connection with those duties to be given to a third
party or solicits or promises such bribe to be given to a third party (Passing of Bribes), he
may be punished by imprisonment with labour under the Penal Code. The Penal Code also
punishes a public officer who accepts, solicits or promises to accept a bribe as consideration
for influence which the official exerted or is to exert, in response to a request, upon another
public officer so as to cause the other to act illegally or refrain from acting in the exercise of
official duty by imprisonment with labour (Acceptance for Influence). In addition to punishing
a public officer, a person who gives, offers or promises to give a bribe to a public official may
be punished by imprisonment with labour or fined (Giving of Bribes).
The Penal Code applies to bribery of a Japanese public officer which takes place outside
of Japan.
44 Norton Rose Group
Anti-corruption laws in Asia Pacific
As regards bribery in Japan, the Profits for Intermediation Act provides that it is an offence to
make a payment or provide a benefit to a member of the House of Representatives, the House
of Councillors or a member of a local assembly to have him use his influence or authority over
an employee or an officer of a company with more than 50 per cent of its subscribed capital
owned by the national or a local Government, in order to have the employee or officer perform
or refrain from performing a certain action relating to his duty. The member and the person
who provided the money to the member are both liable to punishment by imprisonment or (in
the case of the latter) may be fined.
Defences and mitigation measures
Japanese corporations, as distinct from natural persons, are not directly subject to the
Japanese criminal anti-bribery laws, though they may be so if they procure acts of bribery
by their employees or fail to put in place adequate measures to prevent bribery by their
employees. There is no written definition of what would constitute adequate measures
to prevent bribery and the Japanese courts examine the issue strictly on a case-by-case
basis. It is, however, accepted that the scope for a company to escape liability in such cases
should be narrow, with the company required to prove it has made an active and concrete
effort to prevent any illegal action by its employees; merely issuing cautions and/or holding
compliance seminars would probably not be sufficient.
Penalties
In June 2005, the Diet passed an amendment that increased the sanctions for natural
persons convicted of foreign public official bribery under the UCPA. The monetary sanction
was increased from a maximum of 3 million yen to 5 million yen, and the maximum sentence
of imprisonment was increased from three years to five years. In addition, natural persons
can now be sentenced to both a fine and imprisonment, whereas previously only one of the
two penalties could be imposed.
Penalties under the Penal Code for bribery of domestic public officials include:
Acceptance of Bribes: imprisonment with labour for not more than five years, or seven
years if the official agrees to perform an act in response to a request from the person to/
from whom the official accepts, solicits or promises to accept a bribe in connection with
his duties.
Passing of Bribes: imprisonment with labour for not more than five years. When a public
officer commits such an offence and consequently acts illegally or refrains from acting in
the exercise of his duty, imprisonment with labour for a term of not less than one year may
be imposed and the same may apply when a public officer accepts, solicits or promises to
accept a bribe, or causes a bribe to be given to a third party or solicits or promises a bribe
to be given to a third party, in connection with having acted illegally or having refrained
from acting in the exercise of the officials duty.
Acceptance for Influence: imprisonment with labour for not more than five years.
Giving of Bribes: imprisonment with labour for not more than three years or a fine of not
more than 2,500,000 yen.
Norton Rose Group 45
Japan
Facilitation payments, hospitality and gifts
Facilitation payments are not expressly prohibited under the UCPA. Whilst the Penal Code
does not expressly prohibit facilitation payments, it is generally accepted that they are
not allowed.
The Ethics Act has established a gifts register and requires middle and senior level public
officials to disclose gifts in excess of 5,000 yen.
Corporate liability for the acts of subsidiaries, employees and third parties
As noted above, Japanese corporations are not directly subject to the Japanese anti-bribery
laws, though they may be so if they procure acts of bribery by their employees or fail to put in
place adequate measures to prevent bribery by their employees.
Liability of individual directors and officers
The directors of a Japanese company which is liable to a fine under the UCPA and the Penal
Code would not be personally liable for that fine or liable to a direct fine under the UCPA or
the Penal Code simply as a consequence of holding office.
Directors of Japanese companies can be liable under the Companies Act (Act No 86 of 2005) for
the acts or omissions of the company if such actions or omissions result from his negligence
(ie, if it could be deemed as a breach of his fiduciary duty which includes the duty to monitor
the actions of other directors). The fiduciary duties under the Companies Act apply only to
directors of Japanese companies; they are not applicable to the acts of directors of non-
Japanese companies as far as the fiduciary duties are not governed by the laws of Japan, even if
such acts take place within Japan and whether the directors are Japanese nationals or not.
Incoming directors are not liable for past actions of the appointing company unless they incur
liability through their own actions or inaction, eg, by breach of fiduciary duty in failing to cure
a known past wrong.
Anti-money laundering legislation
The Act on Prevention of Transfer of Criminal Proceeds (Act No 22 of 2007), Japans money
laundering law, only applies to specified entities such as banks, insurance companies,
lawyers, accountants etc, in connection with the benefit/money received from organised
crime or drug related crimes. Such specified entities have duties to confirm the identity of
customers when conducting certain dealings as stipulated in the Act, and to create and keep
a record of customers identities and deals.
46 Norton Rose Group
Anti-corruption laws in Asia Pacific
Whistleblowing legislation
The Whistleblower Protection Act (Act No 122 of 2004) provides comprehensive protection for
employees who wish to whistleblow. This protection includes:
the nullification of the whistleblowers dismissal (if the dismissal is a result of the
whistleblowing)
the nullification of the cancellation of a worker dispatch agreement (if the cancellation of
the agreement is a result of the whistleblowing)
the prohibition of disadvantageous treatment, such as a demotion or reduction in salary (if
the treatment is a result of the whistleblowing).
However, no protection of anonymity is afforded to the whistleblower under the Act. The Act is
currently subject to review.
There is currently no express obligation conferred by any statute requiring members of the
public to whistleblow when they encounter corrupt practices in Japan.
Enforcement agencies
The National Public Services Ethics Act (NPSEA) established the National Public Service Board
which has anti-corruption investigative and disciplinary powers.
If the Board of Audit of Japan finds illegal or unjustified items during an examination of a
company of which 50 per cent or more of the shares are owned by the Japanese Government,
it may immediately present its view to the administrator or other related parties or request
them to take appropriate action and may also have them take steps to correct subsequent
accounting irregularities. n
Norton Rose Group 47
Malaysia
Malaysia
Contributed by Zaid Ibrahim & Co
TI rankings
60th on the CPI, 15th on the BPI.
International anti-corruption conventions and inter-governmental
organisations
Ratified both the UNCAC and UNCTOC. Member of the ADB/OECD Asia Pacific Anti-Corruption
Initiative and the APG.
Anti-bribery legislation and major offences
Legislation
The primary statute governing anti-bribery and similar offences is the Malaysian Anti-
Corruption Commission Act 2009 (MACCA) which came into force on 1 January 2009 (and
repealed the Anti-Corruption Act 1997).
In addition to the MACCA, other statutes and codes provide a patchwork of overlapping
provisions that prohibit bribery in both the private and public sectors. Those statutes and
codes include:
Penal Code
Customs Act 1967
Election Offences Act 1954
Societies Act 1966
Trade Unions Act 1959
Youth Societies and Youth Development Act 2007
Banking and Financial Institutions Act 1989
Companies Act 1965.
Private sector
The MACCA prescribes that any person or his agent involved in a bribery transaction shall be
guilty of a criminal offence. For the receipt or giving of any gratification to amount to bribery
under the MACCA, it must be proven that:
48 Norton Rose Group
Anti-corruption laws in Asia Pacific
The person soliciting, receiving or agreeing to receive any gratification as an inducement
to or as a reward on account of any person doing or forbearing to do anything must have
solicited, received or agreed to receive the said gratification corruptly.
The person giving, promising or offering any gratification as an inducement or as a reward
on account of any person doing or forbearing to do anything must have done so corruptly.
In addition to the MACCA, there are other general provisions in other legislation that govern
the private sector. For example, the Companies Act 1965 stipulates that any director or officer
of a company who, without the consent or ratification of a general meeting, uses his position
to directly or indirectly gain benefit for himself or any other person, is guilty of an offence.
Public sector
Officers in the public sector, who are broadly defined to include any person receiving
remuneration from public funds, are subject to the provisions of the MACCA and such officers
include foreign public officials. The MACCA imposes a similar standard and burden of proof
on officers in the public sector as it does on persons in the private sector. Generally, any
officer in the public sector who corruptly receives any gratification for the inducement or
forbearance of any act commits an offence.
In addition to the general rule above, the MACCA also provides additional clauses that relate
to public officials and bodies and persons dealing with them. For example, any person who
offers any gratification to an officer of a public body for the purposes of:
the officer voting or abstaining from voting at any meeting of the public body in favour of or
against any measure, resolution or question submitted to the public body
the officer performing or abstaining from performing or aiding in procuring, expediting,
delaying, hindering or preventing the performance of, any official act
the officer aiding in procuring or preventing the passing of any vote or the granting of any
contract or advantage in favour of any person
the officer showing or forbearing to show any favour or disfavour in his capacity as such
officer, commits an offence.
The fact that the officer did not have the power, opportunity or intention to do so is irrelevant.
Furthermore, the MACCA extends the scope of the offence by stating that the inducement or
reward need not be in relation to the affairs of the public body to which the officer is employed.
Where there is a charge of corruption against an officer of a public body and it has been
proven that gratification has been accepted, a presumption is placed on such officer
notwithstanding that the gratification may have been accepted without corrupt intent. This
presumption applies to both domestic and foreign public officers.
The Penal Code similarly provides that the taking of gratification by public servants, by
corrupt or illegal means, is a criminal offence. In addition, any person who aids and abets the
commission of the offence is likewise guilty of a criminal offence.
Norton Rose Group 49
Malaysia
General offences
In addition to the actual act of corruption being an offence, the MACCA also imposes
mandatory duties on persons who are given, promised or offered any gratification in
contravention of the MACCA to report the same to an officer of the Malaysian Anti-Corruption
Commission (MACC) or a police officer. Similarly, a person from whom gratification is
solicited or obtained, or an attempt to obtain gratification is made from that person, is under
a statutory duty to report the incident to the MACC or a police officer.
Extra-territorial application
The MACCA imposes liability on persons who commit offences under its provisions regardless
of the offenders geographical location provided that part or the whole of the subject matter
of the offence is within the jurisdiction of the Malaysian courts.
Penalties
On conviction, penalties under the MACCA include a term up to 20 years and a fine of not less
than five times the sum or value of the gratification which is the subject matter of the offence
where such gratification is capable of being valued or is of a pecuniary nature, or RM10,000,
whichever is the higher.
The Penal Code also provides penalties of imprisonment for up to three years, fine or both for
the taking of gratification by or for public officers.
In addition to the above, the Companies Act 1965 which applies to the private sector
prescribes that a person who gains a benefit for himself or for any other person without the
consent of a general meeting may be imprisoned for up to five years or fined RM30,000.
Defences and mitigation measures
Each charge of corruption creates a prima facie presumption of guilt on the accused, who
must then rely on statutory provisions to rebut the ingredients necessary to prove corruption.
Generally, the defences available to the accused are dependant on the nature of the charge
brought against him.
For example, in the MACCA, any allegation of bribery must satisfy the requirement that the
bribe was either given or received corruptly. The term corrupt is not defined in the MACCA
and must be determined on a case-by-case basis by the courts at trial.
Another example can be found in the Companies Act 1965 where it provides that directors are
not responsible for offences committed by their delegates if they had reasonable grounds to
believe that duties were being performed in conformity with the law and if the directors had
at all times acted in good faith. Again, the terms reasonable grounds and good faith must
be determined on a case-by-case basis at trial.
Facilitation payments, hospitality and gifts
The Public Officers (Conduct and Discipline) Regulations 1993, prescribe the circumstances and
types of gifts that may be accepted by public officers. Generally, gifts to a public officer or to
persons related to the public officer are prohibited. However, the Head of Department to which
the officer is part of may allow the officer to retain the gift provided it is not inconsistent with
the provisions of the Public Officers (Conduct and Discipline) Regulations 1993.
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Anti-corruption laws in Asia Pacific
The Public Officers (Conduct and Discipline) Regulations 1993 and The Public Officers
(Conduct and Discipline) (Amendments) Regulations 2002 generally allow public officers to
give or accept any form of entertainment provided it does not influence the performance of
their official duties and such entertainment is not inconsistent with other provisions therein.
Corporate liability for the acts of employees and third parties
Under Malaysian law, a company may be found liable for corruption and charges may be
brought against the offending company. This is due to the fact that the word person
includes a body of persons, corporate or unincorporated and the provisions of the MACCA
and other statutes apply equally to companies as they do to individuals.
While companies are technically subject to similar standards as individuals, case law suggests
that prosecutions are usually brought against individuals. Prior to the MACCA, actions brought
under the Anti Corruption Act 1997 also tend to be against individuals and not companies.
Liability of individual directors and officers
Generally, directors will not be found liable for any offence committed by the company or
its employees unless the directors were privy, or involved in the act of corruption itself. The
Companies Act 1965, which is the primary statute governing companies and its directors, does
not expressly provide for liability of directors for the offences of the company. The general rule
can be ascertained from Section 132(1G) of the Companies Act 1965, which provides that
directors are not liable for the acts of its delegates provided that the directors have reasonable
grounds and in good faith believed that the delegate would exercise the power in conformity
with the duties imposed on the directors and is competent to exercise such power.
Directors may however be liable if they fail to exercise reasonable care, skill and diligence in
the performance of their duties. It must be noted that this liability is for the conduct of the
directors duties and not the act of corruption itself. An illustration of a director being found
liable is where the director fails to discover an act of corruption which should have been
discovered with reasonable care, skill and diligence.
In addition to the above, directors are also subject to the MACCA and are under similar duties
to other persons with regard to the disclosure of bribery transactions.
Anti-money laundering legislation and reporting obligations
Anti-money laundering is primarily governed by the Anti-Money Laundering and Anti-Terrorism
Financing Act 2001 (AMLA). Money laundering is generally defined as the act of a person
who engages in a transaction that involves the proceeds of any unlawful activity or deals,
conceals, disguises or impedes the establishment of the true nature, origin and other details
of the proceeds of unlawful activities.
The AMLA defines unlawful activities as activities which are related, directly or indirectly,
to any serious offence or foreign serious offence. A list of serious offences is provided in
Norton Rose Group 51
Malaysia
the Second Schedule of the AMLA. With regard to corruption offences, the following among
others are considered serious offences:
accepting gratification
giving or accepting gratification by agent
bribery of officer of public body
bribery of foreign public officer
offence of using office or position for gratification.
It must be noted that AMLA also has extra-territorial jurisdiction as it applies to foreign
serious offences as well as domestic serious offences.
To detect and curb money laundering in Malaysia, the AMLA requires that reporting
institutions must keep a record of any transaction involving domestic or foreign currency
exceeding such amount as may be specified by the competent authority, the Bank Negara
Malaysia (BNM). Reporting institutions are any person, including bodies corporate or
unincorporated, that carry out specific activities as prescribed by the AMLA and generally
include banking, insurance and securities businesses. Records of such transaction must be
reported to the BNM promptly or where the reporting institution or its employee suspects
involves the proceeds of an unlawful activity.
In addition to the provisions of the AMLA, other general reporting obligations are prescribed
by the MACCA. Please refer to the section above titled General offences.
Whistleblowing legislation
The Whistleblower Protection Act 2010 (WPA) which came into force on 15 December 2010
facilitates protected disclosures and protects whistleblowers against any retaliatory action
from their employers through criminal sanctions. Under the WPA, any detrimental action
taken against the whistleblower in reprisal is an offence, and the penalty could be up to
RM100,000 or a jail term of up to 15 years or both. It must however be noted that pursuant
to Section 9 of the WPA, the whistleblower is only protected from the act of disclosure
of improper conduct. The whistleblower cannot rely on the WPA to escape liability if the
whistleblower himself is involved in the bribery transaction.
The MACCA also provides protection to whistleblowers in Section 65 by providing that the
identity of informants or the place in which the information was given by the informant to the
MACC cannot be revealed or disclosed in any civil, criminal or other proceedings in any court,
tribunal or other authority.
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Anti-corruption laws in Asia Pacific
Enforcement agencies
The MACC is given extensive powers to investigate corruption and may order any person to
appear before it to be examined. In addition, officers of the MACC are empowered by the
MACCA to have similar powers and immunities afforded to police officers in the performance
of their duties, for example, powers of search and seizure of property. n
Norton Rose Group 53
Philippines
Philippines
Contributed by SyCip Salazar Hernandez & Gatmaitan
TI rankings
129th on the CPI.
International anti-corruption conventions and inter-governmental
organisations
Ratified UNCAC and UNCTOC. Member of ADB/OECD Asia Pacific Anti-Corruption Initiative and
the APG.
Anti-bribery legislation and major offences
Legislation
The Revised Penal Code (Act No 3815) (RPC) and the Anti-Graft and Corrupt Practices Act
(Republic Act No 3019) (ACPA) are the principal anti-bribery laws in the Philippines. Under the
RPC, direct bribery is committed when [a]ny public officer shall agree to perform an act in
connection with the performance of his official duties, in consideration of any offer, promise,
gift or present received by such officer, personally or though the mediation of another (Art.
210); while indirect bribery happens when a public officer accept[s] gifts offered to him by
reason of his office (Art. 211). The ACPA enumerates corrupt practices of public officers
(Section 3) which may include bribery. These corrupt practices include:
directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit,
for himself or for any other person, in connection with any contract or transaction between
the Government and any other party, wherein the public officer in his official capacity has
to intervene under the law (Section 3(b))
directly or indirectly requesting or receiving any gift, present or other pecuniary or material
benefit, for himself or for another, from any person for whom the public officer, in any
manner or capacity, has secured or obtained, or will secure or obtain, any Government
permit or license, in consideration for the help given or to be given (Section 3(c))
accepting or having any member of his family accept employment in a private enterprise
which has pending official business with him during the pendency thereof or within one
year after its termination (Section 3(d)).
Other anti-bribery statutes include Republic Act No 6713 and the Code of Conduct and Ethical
Standards for Public Officials and Employees (COCES). While primarily an administrative
statute on Government officers, the COCES imposes a criminal liability for solicitation or
acceptance of gifts by public officials in the course of their official duties or in connection
with any operation being regulated by or any transaction which may be affected by the
functions of their office (Section 6(d) in relation to Section 11). Presidential Decree No
46 also makes it an offence for public officials and employees to receive, and for private
persons to give, gifts on any occasion, including Christmas.
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Private sector
There is as yet no offence of private sector bribery. However, private persons involved in
public sector bribery are punished in the same way as public officers and employees either
as co-conspirators or for the separate felony of Corruption of Public Officials (defined as the
crime committed by the person who shall have made the offers or promises or given the gifts
or presents as described in [the provisions on bribery], RPC, Section 212; ACPA, Section 3
and 9).
Public sector
Anti-bribery legislation in the Philippines focuses on the public sector. Based on the
definition of public officers, the statutes have a broad coverage which extends to any
person occupying a position in the Philippine Government (which term is also broadly defined
as the national and local Governments, Government-owned and controlled corporations and
all other instrumentalities and agencies of the Republic of the Philippines and their branches,
ACPA, Section 2(a); cf. COCES, Section 3(a)). The RPC defines a public officer as any person
who, by direct provision of the law, popular election or appointment by competent authority,
shall take part in the performance of public functions in the Government of the Philippine
Islands, or shall perform in said Government or in any of its branches public duties as an
employee, agent or subordinate official, of any rank or class (Art. 203). On the other hand,
the ACPA defines them as includ[ing] elective and appointive officials and employees,
permanent or temporary, whether in the classified or unclassified or exempt service receiving
compensation, even nominal, from the Government (Section 2(b)).
The ACPA and the COCES require public officials to submit a Statement of Assets and
Liabilities every year, including a statement of the amounts and sources of his income, the
amounts of his personal and family expenses and the amount of income taxes paid for the
next preceding calendar year (ACPA, Section 7; cf. COCES, Section 8). Moreover, there is a
prima facie presumption that a public officer or employee has unlawfully acquired property
if such is manifestly out of proportion to his salary and to his other lawful income and the
income from legitimately acquired property (Republic Act No 1379, Section 2). If the public
official is unable to rebut the presumption, the property will be forfeited to the Philippine
Government (id.) and this will be ground for his dismissal or removal from service (ACPA,
Section 8), without prejudice to criminal prosecution.
Extra-territorial application
The RPC is given extra-territorial application if public officers or employees commit an
offence in the exercise of their functions such as bribery (RPC, Section 2(4)). In other words,
if a public officer receives or accepts a gift in consideration of an act related to his official
duties, he is liable for bribery, despite the fact that he did so outside the Philippines. The act
punished in bribery is the receipt or acceptance of a gift by a public officer; thus the RPCs
extra-territorial application does not extend to bribery of foreign officials (ie, the act of bribe-
giving) or to private Filipino citizens accepting bribes for they do not constitute bribery or
an offence in the exercise of public functions under Philippine law.
Defences and mitigation measures
The anti-bribery laws are subject to general defences and mitigation measures under
Philippine law such as burden of proof, justifying and mitigating circumstances.

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Penalties
Anti-bribery laws in the Philippines are criminal. The RPC imposes penalties which depend
on the nature of the act that the public officer agreed to perform (eg, whether the act itself
constitutes a crime; a form of desistance from official duties or if the officer received the
gift by reason of his office). The penalty that can be imposed may range from two to eight
years imprisonment (and a fine of not less than the value of the gift for direct bribery),
subject to the general rules on graduation of penalties (Art. 210-212). The RPC specifically
punishes a law enforcer for qualified bribery when such law enforcer refrains from arresting
or prosecuting an offender who has committed a crime punishable by 20 to 40 years
imprisonment (reclusion perpetua). The law enforcer is made to suffer the penalty for the
offence which was not prosecuted (Art. 211-A). Moreover, the foregoing carry accessory
penalties such as special temporary disqualification for direct bribery (ie, deprivation of
the office and disqualification from holding similar offices during sentence, RPC, Art. 210 in
relation to Art. 31).
The ACPA penalises corrupt practices of public officers with imprisonment for not less than
six years and one month nor more than fifteen years, perpetual disqualification from public
office, and confiscation or forfeiture in favor of the Government of any prohibited interest
and unexplained wealth manifestly out of proportion to his salary and other lawful income
(Section 9). The COCES also punishes solicitation or acceptance of gifts by public officers
with less than five years imprisonment and/or a fine of PhP5,000 unless a heavier penalty is
applicable under another law (Section 11).
Facilitation payments, hospitality and gifts
The anti-bribery regime in the Philippines makes no distinction with regard to facilitation
payments, hospitality and gifts. Generally, all forms of consideration in connection with
the performance of official duty are covered by Philippine anti-bribery statutes. However,
the ACPA makes an exception for [u]nsolicited gifts or presents of small or insignificant
value offered or given as a mere ordinary token of gratitude or friendship according to local
customs or usage (Section 14). Similarly, the COCES excludes unsolicited and nominal
gifts that are not given in anticipation of, or in exchange for, a favor from a public official
or employee (Section 3(c)). Nonetheless, the COCES has been interpreted as prohibiting
the mere receipt of a gift, whether solicited or not, so long as the value of the gift is neither
nominal nor insignificant; or the gift is given in anticipation of, or in exchange for, a favor
(Mabini v Raga et al., A.M. No P-06-2150, June 21, 2006). Philippine jurisprudence has not
yet provided further guidance on what constitutes nominal or insignificant value or a gift
according to local customs or usage. These standards are determined by the courts on a
case-to-case basis.
Corporate liability for the acts of subsidiaries, employees and third parties
The concept of a corporations criminal liability is not widely recognised in Philippine law, in
the sense that the laws focus on individuals rather than the corporations they may represent
and who may benefit from such acts.
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A corporation, however, can be held civilly liable (for liability arising out of private relations
which can be expressed in monetary terms). The RPC establishes civil liability of corporations
for felonies (ie, crimes defined under the RPC and not under special laws like the ACPA)
committed by their employees in the discharge of their duties (Art. 103; see Gosiaco v Ching
and Casta, G.R. No 173807, April 16, 2009). In other words, the civil liability of a corporation
attaches when only its employees are convicted but are unable to satisfy the monetary
component of the judgment.
Generally, a corporation is not liable for acts of its subsidiaries and third parties in view of its
separate personality.
Liability of individual directors and officers
While Philippine law recognises the limited liability of corporations, this is subject to the
doctrine of piercing the corporate veil. Thus, individual directors and officers are generally not
liable for acts of a corporation unless it is proved that they are using the corporate personality
to defeat public convenience, justify wrong, protect fraud, or defend crime (Suldao v
Cimech System Construction, G.R. No 171392, October 30, 2006). However, if directors and
officers approved or participated in the bribery, they are individually liable for the crime,
despite the fact that they did so in the name of the corporation.
Anti-money laundering legislation and reporting obligations
The Philippines enacted Republic Act No 9160 or the Anti-Money Laundering Act of 2001
(AMLA) to address its inclusion in FATFs list of non-cooperative countries in the fight against
money laundering. The AMLA defines a money laundering offence as a crime whereby the
proceeds of an unlawful activity (as defined by the AMLA) are transacted, thereby making
them appear to have originated from legitimate sources (Section 4). The statute identifies
three modes of committing the offence:
Any person knowing that any monetary instrument or property represents, involves, or
relates to, the proceeds of any unlawful activity, transacts or attempts to transact said
monetary instrument or property.
Any person knowing that any monetary instrument or property involves the proceeds of any
unlawful activity, performs or fails to perform any act as a result of which he facilitates the
offence of money laundering referred to.
Any person knowing that any monetary instrument or property is required under AMLA to
be disclosed and filed with the Anti-Money Laundering Council, fails to do so (Section 4).
The definition of unlawful activity is restricted to 14 crimes penalised in other laws such
as the corrupt practices under the ACPA, securities fraud, kidnapping for ransom, robbery,
extortion and swindling under the RPC (AMLA, Section 3(i)). At present, this Section does
not include bribery as defined under the RPC, but acts of bribery may be covered by the
corrupt practices under the ACPA or under felonies or offences of a similar nature that are
punishable under the penal laws of other countries (ACPA, Section 3(i)(14)).
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Philippines
The AMLA created the Anti-Money Laundering Council as its enforcement body which has the
power to, among others, implement the reporting obligations under the statute, investigate
possible money laundering offences and issue freeze and bank inquiry orders with prior court
approval (Sections 7, 10 and 11). Covered institutions like banks, trust entities, insurance
companies, securities dealers and money changers have reporting obligations for covered
and suspicious transactions (Sections 3(a) and 9(c)). Failure to do so may constitute a money
laundering offence under the third mode of commission. A covered transaction is defined
as a transaction in cash or other equivalent monetary instrument involving a total amount
in excess of five hundred thousand pesos (PhP500,000.00) within one (1) banking day
(Section 3(b)). On the other hand, suspicious transactions are transactions with covered
institutions, regardless of the amounts involved, which fall within defined circumstances
under the AMLA.
Consistent with the AMLAs policy to extend cooperation in transnational investigations
and prosecutions of persons involved in money laundering (Section 2), the Anti-Money
Laundering Council is empowered to request for assistance from a foreign state and
conversely, act on a request from another country to (i) track down, freeze, restrain and seize
certain assets; (ii) give information needed by the foreign State; and (iii) apply for a court
order of forfeiture of any monetary instrument or property (Section 13).
Whistleblowing legislation
Presidential Decree No 749 is an immunity statute for givers of bribes [and] their
accomplices in bribery and other graft cases against public officers. While the title seems to
be limited to bribe givers, the decree covers any person who voluntarily gives information
about the commission of bribery under the RPC and violations of other laws, rules and
regulations punishing acts of graft, corruption and other forms of official abuse (Section 1).
Particular conditions must be established under the decree before immunity will be granted.
Moreover, the Ombudsman (the constitutional body mandated to investigate and prosecute
unlawful acts of public officials) has the power to grant immunity from criminal prosecution
to any person whose testimony or whose possession [of] evidence may be necessary
to determine the truth in any hearing, inquiry or proceeding in the furtherance of [the
Ombudsmans] constitutional functions and statutory objectives (The Ombudsman Act
of 1989, Section 17). General immunity laws are also available such as the discharge of
an accused to be a state witness under the Rules of Court (Rule 119, Section 17) and the
Witness Protection Program (Republic Act No 6981).
There is currently no express obligation conferred by any statute requiring the public to
whistleblow when they encounter corrupt practices in the Philippines.
Enforcement agencies
The 1987 Philippine Constitution invested the Office of the Ombudsman with plenary
investigative and prosecutorial powers for acts of public officials which appears to be
illegal, unjust, improper and inefficient (Art. XI, Section 13(1); Department of Justice et al.
v Liwag, G.R. No 149311, February 11, 2005). Given such broad mandate, the Office of the
Ombudsman concurs with the Department of Justice, which is the general prosecutorial
58 Norton Rose Group
Anti-corruption laws in Asia Pacific
arm of the Philippine Government (Administrative Code of 1987, Book IV, Title III, Sections
1-3). However, the Ombudsman has primary jurisdiction over cases of high-ranking officials
cognisable by the Sandiganbayan (the Philippine anti-graft court; cf. Presidential Decree No
1606, Section 4) and it may take over, at any stage, from any agency of Government, the
investigation of such cases (The Ombudsman Act of 1989, Section 15(1)).
Moreover, the Ombudsman has disciplinary authority over all public officials and employees,
except members of Congress and the Judiciary and officials who may only be removed by
impeachment (id., Section 21). This disciplinary authority also concurs with the Civil Service
Commission, the central personnel agency created under the Constitution (Phil. Constitution,
Art. IX-B, Section 3; Antonio et al. v Villa et al., G.R. No 144694, March 28, 2005).
Finally, the Office of the President and local legislative bodies are given disciplinary authority
over local elective officials which concurs with the authority of Ombudsman and the Civil
Service Commission (Local Government Code of 1991, Sections 60-68). Graft and corrupt
practices by public officials and employees give rise to civil, administrative and criminal
liabilities which may be enforced by these agencies. In addition to Government bodies,
various NGOs have been at the forefront of targeting official graft. n
Norton Rose Group 59
Singapore
Singapore
Contributed by Norton Rose Group
TI rankings
5th on the CPI. 8th on the BPI.
International anti-corruption conventions and inter-governmental
organisations
Ratified the UNCAC and UNCTOC. Member of ADB/OECD Asia Pacific Anti-Corruption Initiative.
Member of FATF and APG.
Anti-bribery legislation and major offences
Legislation
In Singapore, the primary anti-corruption statutes which prescribe corruption as substantive
offences are:
the Prevention of Corruption Act (the PCA)
the Penal Code.
Private sector
Section 5 of the PCA creates public and private offences of active and passive bribery by both
individuals and companies. Section 6 creates agency bribery offences involving either the
corrupt offer or acceptance of gratification to an agent in relation to the performance of his
principals affairs or for the purposes of misleading that principal.
Public sector
In addition to the above, specific provisions in the PCA (Sections 11 and 12) prohibit bribery
of domestic public officials. Section 11 addresses both active and passive bribery in relation
to Members of Parliament, while Section 12 creates offences in respect of members of the
public body. Section 10 creates an offence in relation to offering or accepting gratification in
relation to Government tenders.
The Penal Code also contains provisions that deal specifically with the bribery of domestic
public officials (Sections 161 to 165). Sections 161 to 163 create offences where
gratification is accepted. The term gratification is broadly defined under the PCA to
include money, gifts, loans, fees, rewards, commissions, valuable security, property, interest
in property, employment contracts or services.
Both pieces of legislation cover a broad range of domestic public officials. The PCA applies to
a member, officer or servant of a public body. The definition of public body under the PCA
includes any corporation, board, council, commissioners or other body which has power to
act under and for the purposes of any written law relating to public health or to undertakings
or public utility or otherwise to administer money levied or raised by rates or charges in
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pursuance of any written law. The provisions of the Penal Code use the term public servant.
This has been defined under the Penal Code to include judges and officers of a court of
justice, arbitrators, Government officers and army officers.
The PCA and Penal Code do not specifically target the bribery of foreign officials, although such
bribery could fall under the ambit of the general provisions of the PCA (at Sections 5 and 6).
Extra-territorial application
A Singapore citizen will be liable under Section 37 of the PCA for corrupt behaviour, even if
such behaviour took place outside Singapore.
The Penal Code provides that an act committed outside Singapore by a Singapore public
servant (being a Singapore citizen or permanent resident) purporting to act in the course of
his or her employment that would constitute an offence within Singapore, will be deemed to
have been committed in Singapore. Accordingly, if the Singapore public servant accepted a
bribe overseas, he or she would be liable under Singapore law.
Defences and mitigation measures
There is no express defence of adequate anti-bribery compliance procedures under the
various key statutes pertaining to corruption in Singapore. Having adequate procedures
in a company to guard against corruption may be a relevant factor at the mitigation stage,
and also may be viewed favourably by regulators/prosecutors when deciding whether to
pursue a case against the company/directors of the company. Further, having such adequate
procedures in place may be an argument against liability for a director/officer in respect of
civil claims brought by the company or shareholders of the company for breach of fiduciary or
other duties or for failing to take steps to guard against corruption.
Prosecutorial discretion is granted to the Public Prosecutor to initiate, conduct or discontinue
any criminal proceedings. It may be possible for a person under investigation to try to
convince the Public Prosecutor not to initiate criminal proceedings against him, to send
letters of representation making requests of the Prosecutor, or to plead guilty in return for
either a lesser sentence or resolution of the matter without trial. Discretion lies with the
Public Prosecutor in responding to any of these requests.
There is presently no formal plea bargaining procedure prescribed under the PCA. However,
the Attorney-General recently announced a signature project to put plea bargaining laws in
place by 2012. The proposed laws would allow defendants to plead guilty to a lesser charge
or to plead guilty to the original charge for a sentence lighter than the maximum. The formal
plea bargaining structure will include safeguards for unrepresented defendants. Prosecutors
are also considering the use of deferred prosecution agreements under which defendants
who agree to cooperate with investigators pay fines, implement corporate reforms and/or
subject themselves to the scrutiny of independent monitors and have charges against them
dismissed if they fully comply.
Penalties
The PCA imposes a fine and/or custodial sentence for the contravention of the general
offence provisions. The guilty individual/company may be liable to a fine not exceeding
S$100,000 and/or imprisonment (for individuals only) for a term not exceeding seven years.
Norton Rose Group 61
Singapore
There are civil remedies available for a victim of corruption to recover property of which it has
been deprived. The PCA also provides for the recovery as a civil debt, by the principal, of an
amount paid to its agent (Section 14).
Facilitation payments, hospitality and gifts
Facilitation payments are not exempt from the provisions of the PCA or the Penal Code, and
the giving of such payments will constitute an act of bribery.
There are no express restrictions in the PCA or the Penal Code on the provision of gifts,
travel expenses, meals or entertainment. However, anything provided with the requisite
corrupt intent will fall under the general provisions of the PCA and the Penal Code and could
constitute an offence.
Corporate liability for the acts of subsidiaries, employees and third parties
Companies can be held liable for bribery offences. The various provisions of the PCA and
the Penal Code set out certain offences which may be committed by a person. The term
person has been defined in the Interpretation Act (Cap 1) to include any company or
association of body of persons, corporate or unincorporated. Thus, companies can be liable
for offences under the PCA and the Penal Code.
In addition, Singapore case law indicates that corporate liability can be imposed on
companies for crimes committed by their employees, agents, etc. This will depend on
whether the person who has committed the crime can be regarded as the embodiment of
the company, or whose acts are within the scope of the function of management properly
delegated to him.
Liability of individual directors and officers
Generally, individual directors and officers of a company will not be held strictly liable
for an offence found to have been committed by the company if they were not personally
responsible for, or otherwise involved in, that particular offence. There are no express
provisions in the various key statutes which would seek to attribute the criminal liability of a
company to its directors and officers.
However, it may be possible for the individual directors and officers who are not personally
guilty of the corrupt acts committed by the company to be potentially liable for consequential
offences related to such corrupt acts, including money laundering and the failure to report the
suspicion that certain property is connected to criminal conduct.
The directors and officers (whether of Singapore-incorporated companies or companies
incorporated in other jurisdictions) who are personally involved in the corrupt activities may
be liable beyond bribery offences for abetment/conspiracy, breach of fiduciary duties, breach
of disclosure requirements under the Companies Act, breach of reporting obligations, and
could potentially be exposed to civil liability arising out of the corrupt acts.
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Anti-money laundering legislation
The Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act
(CDSA) criminalises any dealing with the proceeds of certain criminal conduct, including
predicate corruption offences under the PCA. Both the CDSA and the Criminal Procedure Code
(CPC) prescribe various reporting obligations in respect of corrupt behaviour.
Section 39 of the CDSA requires a person who knows or who has reasonable grounds to
suspect that any property represents, was used in connection (or intended to be used
in connection) with any act which may constitute criminal conduct, to disclose such
knowledge or suspicion to the relevant authorities. This Section imposes an obligation to
disclose knowledge or suspicion of a corrupt act, whether such corrupt act is committed in
Singapore or outside Singapore.
Section 44 of the CDSA, which prohibits a person from assisting another to retain benefits
from criminal conduct extends to property derived from corruption outside of Singapore.
This is because criminal conduct has been defined in the CDSA to include the doing or
being concerned in, whether in Singapore or elsewhere, any act constituting a serious
offence or a foreign serious offence.
A foreign serious offence refers to an offence that, if it had been committed in Singapore,
would have been a serious offence. Offences under Sections 5 and 6 of the PCA would
constitute serious offences under the CDSA.
Section 47 of the CDSA, which prohibits the acquiring, possessing, using, concealing or
transfer of benefits of criminal conduct, extends to benefits derived from corruption outside
of Singapore on similar grounds as those discussed above.
The duty to report under Section 424 of the CPC extends to certain corruption-related
offences, in particular, Sections 161 to 164 of the Penal Code. As discussed above, these
offences have extraterritorial effect there will be thus be a duty to report them even if they
are committed outside Singapore.
Whistleblowing legislation
There is currently no overarching whistleblowing legislation in Singapore. As regards
corruption, Section 36 of the Prevention of Corruption Act (Cap 241) affords anonymity
to whistleblowers. However, the right to anonymity may be revoked in the following
circumstances:
if the courts believe that justice cannot be done without revealing the identity of the informer
if the whistleblower did not believe that the statement he was making was true or actually
knew that the statement was false.
Currently, no provision exists to protect or reduce the sentence of whistleblowers who have
participated in the illegal activity they have reported on. In such instances, the discretion of
the court will be exercised when determining whether or not the act of whistleblowing should
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Singapore
result in a reduced sentence or fine. The exercise of discretion will depend, in part, on the
motivation of the whistleblower.
The public are obliged to provide any information they are in possession of (relating to corrupt
acts) if the Director of the Corrupt Practices Investigation Bureau (CPIB) requires them to do so.
Enforcement agencies
The main Government enforcement agency is the CPIB, which derives its powers from the
PCA. The CPIB carries out investigations into complaints of corruption, but does not prosecute
cases. Where appropriate, the CPIB refers cases to the Public Prosecutor for prosecution.
The Economic Crimes and Governance Division (EGD) was established within the Attorney-
Generals Chambers in January 2011. It is one of three divisions in the Attorney-Generals
crime cluster, with the Criminal Justice Division and State Prosecution Division being the
other two. Originally, the EGD was established to focus on and specialise in sophisticated
financial crimes and regulatory offences, as well as quasi-criminal matters potentially
involving cross-border elements. However, following a re-organisation of the Attorney-
Generals Chambers, the EGD is now responsible for the enforcement, prosecution and
all related appeals in respect of financial crimes and corruption cases within and outside
Singapore investigated by the Commercial Affairs Department (CAD) and the CPIB, as well as
regulatory enforcement matters affecting the financial services sector, judicial review relating
to criminal law proceedings and contempt of court cases.
The CAD is the specialist department within the Singapore Police Force which investigates
complex fraud, white collar crime, money laundering and terrorism financing. There are three
branches within the CAD that deal with such issues:
The Financial Investigation Branch is in charge of investigating money laundering under
CDSA.
The Suspicious Transaction Reporting Office is Singapores Financial Intelligence Unit. It
is the central agency in Singapore for receiving, analysing and disseminating Suspicious
Transaction Reports.
The Proceeds of Crime Unit is responsible for conducting financial investigations
concerning property that directly or indirectly represents the proceeds of criminal conduct.
The unit will confiscate such proceeds of crime under CDSA. n
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South Korea
Contributed by Lee & Ko
TI rankings
43rd on the CPI. 13th on the BPI.
International anti-corruption conventions and inter-governmental
organisations
Ratified and implemented the OECD Convention and has ratified UNCAC. Member of ADB/
OECD Asia Pacific Anti-Corruption Initiative. Has signed but not ratified UNCTOC. Member of
FATF.
Anti-bribery legislation, offences and enforcement
Legislation
Criminal sanctions with respect to corruption offences including bribery are made pursuant to
the Criminal Act, the Act on Aggravation of Punishment, etc, of Specific Crimes and the Act on
Aggravation of Punishment, etc, of Specific Economic Crimes.
Importantly, the Korean National Assembly enacted the Anti-Corruption Act of Korea on
24 July 2001 in order to prevent corruption and promote transparency in Korean society.
The Anti-Corruption Act was partly repealed and amended by the Act on the Prevention of
Corruption and the Establishment and Management of the Anti-Corruption and Civil Rights
Commission (new Anti-Corruption Act). The purpose of the new Anti-Corruption Act is to
improve unreasonable administrative systems in processing civil petitions for grievances
and effectively prevent and regulate acts of corruption. The new Anti-Corruption Act
established the Anti-Corruption and Civil Rights Commission (ACRC) whose role is to improve
unreasonable administrative systems pertaining to the processing of civil petitions for
grievances and to assist in the prevention and regulation of acts of corruption.
The Act on Combating Bribery of Foreign Public Officials in International Business
Transactions (Foreign Public Officials Act) governs the bribery of foreign public officials.
Generally, the term act of corruption refers to an:
abuse of position or authority, or violation of acts by a public official in connection with his
or her duties in order to seek gains
infliction of damages on the property of any public institution in violation of laws while
executing the budget of the relevant public institution, acquiring, managing, or disposing
of the property of the relevant public institution, or entering into and executing a contract
to which the relevant public institution is a party
coercing, urging, proposing and inducing any act referred to above or covering it up.
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South Korea
A public official who commits an act of corruption, may be subject to an administrative
reprimand due to a breach of duty of honesty and may also be subject to a criminal sanction
if such the act of corruption falls under one or more crime(s) under the relevant criminal law
statute(s).
Major offences
In the public domain, bribery is one of the most common crimes in South Korea. An act of
bribery will be established where a public official, in connection with his/her duty, receives
a bribe as consideration for performance (Criminal Act 129-132, Act on Aggravation of
Punishment, etc, of Specific Crimes, Article 3).
In this context public official means, in principle, any person or category of person
recognised as such under the State Public Officials Act and/or the Local Public Officials
Act, but does not extend to cases where bribes are given to foreign officials. In addition, in
exceptional cases, the offence of bribery will extend to Korean citizens who are not public
officials under the State Public Officials Act or the Local Public Officials Act but who are
deemed to be public officials (eg, if that person has temporarily taken on an official role).
The bribe must be given to the public official as consideration for the performance of an act
that falls within, or is closely related to, the public officials duties (ie, his/her general official
authority) and the public official must be aware that the bribe is being given in this context.
Accordingly, giving money or other valuables to a public official as consideration for an act
outside of his/her official duty will not constitute bribery. In addition, where money or other
valuables are given to a public official as a social courtesy or in circumstances where such is
clearly acknowledged as a friendly gesture based on personal friendship, bribery will not be
established.
Crimes of corruption are not limited to the public domain. Where an individual or employee
of a private company, who is not an official, solicits an illicit favour from another non-official
in connection with business and for his or her benefit (or the benefit of a third party), and
pays consideration for such favour, Korean law will view such an act as a corrupt practice
subject to criminal liability. In the private domain, a representative type of crime is the crime
of receiving or giving a bribe by breach of fiduciary duty prescribed in Article 357 of the
Criminal Act. This crime, unlike the crime of bribery requires an illicit solicitation of favour
(eg, a request to perform an illicit or unfair act or not to perform a just act) in disregard of
fair competition. Where the purpose of such request is for simple convenience or to secure
the requestors rights within the scope of fairness, such request will not constitute an illicit
solicitation of favour.
In Korea, financial institutions are considered to have characteristics of public institutions
and consequently, Korean law imposes strict ethical obligations on financial institutions
officers and employees. By way of example, the Act on Aggravation of Punishment, etc,
of Specific Economic Crimes imposes criminal sanctions on any officer or employee of a
financial institution who violates such ethical obligation in connection with their work (eg, by
accepting bribes in relation to the approval of loan applications).
Extra-territorial application
South Korea has been a party to the OECD Convention since 1999 and has adopted the
OECDs Recommendation.
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Anti-corruption laws in Asia Pacific
In accordance with the provisions of the OECD Convention, Korea enacted the Foreign Public
Officials Act. Article 3 of the Foreign Public Officials Act, provides that a person who promises,
offers or discloses an intention to offer a bribe to a foreign public official (including any person
holding a judicial office of a foreign Government, exercising a public function for a foreign
Government or public international organisation, or working for a public enterprise carrying
out a specified public function), in connection with the relevant official duty in an international
commercial transaction, for the purpose of gaining an improper benefit, will be subject to
criminal sanctions. Where the value of the benefit received is less than KRW10 million, potential
sanctions include a term of imprisonment of up to five years or a fine of up to KRW20 million.
Where the value of the benefit received exceeds KRW10 million potential sanctions include
imprisonment of up to five years or a fine of up to twice the value of the benefit.
Unlike the crime of offering a bribe to a domestic public official, the provisions of the Foreign
Public Officials Act provide that, if a representative, agent, officer, or employee of a company
promises, offers or discloses an intention to offer a bribe to a foreign public official in
connection with that companys business, the company itself could be subject to a fine up
to KRW1 billion. However, if the company can show that it has performed its duty of care to
prevent such bribery, it will not be subject to criminal sanctions.
Facilitation payments, hospitality and gifts
The Foreign Public Officials Act allows small payments that are made to foreign officials in
order to facilitate official functions.
Liability of individual directors and officers
A director or an officer of a company will not be held liable for acts that the official is not
involved with. However, where there is evidence of conspiracy or abetment on the part of the
director or officer, then the director or officer may be held liable.
Employment restrictions are also imposed on public officials who are dismissed for
corruption. They are prohibited from obtaining a job in any other public institution or profit-
making company which has maintained close ties to the post to which he/she has belonged
for three years before he/she resigns or any corporation or organisation which has been
established to seek a common interest and mutual cooperation of a profit-making company
for five years from the date on which he/she resigns (new Anti-Corruption Act Article 82).
Anti-money laundering legislation
Korea has enacted anti-money laundering and combating the financing of terrorism laws:
The Proceeds of Crime Act criminalise money laundering and provides for the confiscation
of proceeds of serious crimes. Pursuant to the Proceeds of Crimes Act, anyone who
disguises the acquisition or disposition of criminal proceeds or the origin of criminal
proceeds or conceals criminal proceeds commits an offence which is punishable by
imprisonment of a term not exceeding five years or a fine not exceeding KRW30 million.
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South Korea
The Financial Reports Act is a key anti money laundering (AML) and combating the
financing of terrorism (CFT) law which provides for the establishment and operation of the
Korean Financial Intelligence Unit (KoFIU).
The KoFIU is made up of AML and CFT experts from the Financial Services Commission, the
Ministry of Justice , the National Police Agency, the National Tax Service, the Korean Customs
Service and the Financial Supervisory Service.
The KoFIU works as an institutional link between financial institutions and law enforcement
agencies. Its functions include:
receiving suspicious transaction reports (STRs) from financial institutions
analysing STRs
disseminating STRs to law enforcement agencies for further action
formulating and implementing AML and CFT policies
AML/CFT supervision and education of financial institutions.
Whistleblowing legislation
Under the new Anti-Corruption Act public officials are obliged to report acts of corruption by
another public official to any investigative agency, the Board of Audit and Inspection, or the
ACRC (Article 56).
In the context of bribery involving foreign public officials, it is envisaged that whistleblower
protection will be adopted upon the enactment of the Act on the Protection of Public Interest
Whistleblowers on 30 September 2011. The Reports Act and the Proceeds of Crimes Act
also include whistleblower related provisions, such as imposing reporting obligations on
employees of financial institutions and penalties for failing to report. However, these acts do
not provide any protection for the whistleblower.
Enforcement Agencies
The ACRC and the KoFIU do not have independent powers to investigate corruption offences.
The Ministry of Justice and its Public Prosecutors have an exclusive authority to bring charges
against crimes relating to all types of corrupt acts. n
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Taiwan
Contributed by Huang & Partners
TI rankings
32nd on the CPI. 19th on the BPI.
International anti-corruption conventions and inter-governmental
organisations
Member of APG.
Anti-Bribery legislation and major offences
Legislation
The Anti-Corruption Statute and the Criminal Law are the main sources of anti-corruption
legislation.
Private sector
Although private sector bribery is not an offence under the Anti-Corruption Statute, the
Criminal Law may be enforced against a private sector offender. Pursuant to Article 342 of the
Criminal Law, a person who manages the affairs of another with the intention of procuring
an illegal benefit for himself, for a third person or to harm the interests of his principal, and
who acts contrary to his duties and thereby causes loss to the property or other interest of
such principal, shall be guilty of an offence punishable by way of imprisonment for a term
of not more than five years, detention and/or a fine of not more than NTD500,000. Thus, an
agent, acting contrary to his duties, who solicits or accepts a bribe thereby causing loss to his
principal, may be in breach of Article 342 of the Criminal Law.
Public sector
In accordance with the provisions of the Anti-Corruption Statute, it is a criminal act for a
person to offer a bribe to a public official (including a person commissioned to undertake
specific public affairs duties) and for a public official to receive a bribe. Such acts are subject
to the specified penalties (which can include imprisonment and/or fines) set out below:
Person offering a bribe:
(a) A person who offers, promises, or gives a bribe or other improper benefit to a
public official to procure a breach of his official duties may be punished by way of
imprisonment for a period of between one and seven years and, in addition, may be
ordered to pay a fine of up to NTD3 million.
(b) A person who offers, promises, or gives a bribe or other improper benefit to a public
official to perform his official duties may be punished by way of imprisonment for a
period not exceeding three years or detention and/or may be ordered to pay a fine of
not more than NTD500,000 (Article 11 of Anti-Corruption Statute).
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Taiwan
Person receiving a bribe:
(c) A public official (or a person commissioned to undertake specific public affairs duties)
who corruptly demands, solicits, receives, accepts or agrees to receive or accept any
bribe or other unjust enrichment in return for being induced to execute or to refrain
from executing any act in violation of his official duties, shall be sentenced to a
term of imprisonment of not less than ten years (with a maximum sentence of life
imprisonment) and, in addition, may be fined up to NTD100 million (Article 4 of Anti-
Corruption Statute).
(d) A public official who corruptly demands, solicits, receives, accepts or agrees to receive
or accept any bribe or other unjust enrichment in return for being influenced in the
performance of official acts, shall be sentenced to a term of imprisonment of not less
than seven years (with a maximum sentence of 20 years), and, in addition, may be
fined up to NTD60 million (Article 5 of Anti-Corruption Statute).
Person stealing or misappropriating property or equipment:
(e) A public official who steals or misappropriates public equipment or property, shall
be sentenced to a term of imprisonment of not less than ten years (with a maximum
sentence of life imprisonment) and, in addition, may be fined up to NTD100 million.
(f) A public official who steals or misappropriates private property or equipment that is in
the Governments possession, shall be sentenced to a term of imprisonment of not less
than five years (with a maximum sentence of 20 years), and in addition, may be fined
up to NTD30 million (Article 6 of Anti-Corruption Statute).
The provisions in the Criminal Law dealing with corruption in the public sector are similar to
those contained in the Anti-Corruption Statute. However, the Anti-Corruption Statute, being a
specialised corruption focussed statute, takes precedence on corruption matters.
A person who commits an offence under the Anti-Corruption Statute outside Taiwan shall be
penalised pursuant to the Statute, regardless of whether there is a law punishing such an
offence in the place where the crime was committed.
Defences and mitigation measures
Potential penalties under the Anti-Corruption Statute may be mitigated or exempted in the
following circumstances:
A person offering a bribe who commits an offence specified in Article 11 of the Anti-
Corruption Statute and voluntarily surrenders himself for trial may have his punishment
waived; where such person confesses during the investigation or trial, his punishment may
be reduced or exempted (Article 11 of Anti-Corruption Statute).
A person offering a bribe that commits an offence stipulated in Article 11 of the Anti-
Corruption Statute in the form of money or property having a value of less than NTD50,000
dollars may have his penalty reduced (Article 12 of Anti-Corruption Statute).
A person accepting a bribe who subsequently voluntarily surrenders himself after committing
any of the offences listed in Articles 4 through 6 of the Anti-Corruption Statute and has
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Anti-corruption laws in Asia Pacific
returned all proceeds of the crime, may have his punishment reduced or exempted. Such
person may be exempt from punishment if as a result of his surrender and his assistance to
the police, other accomplices are arrested (Article 8 of Anti-Corruption Statute).
A person accepting a bribe who confesses during the process of custodial Interrogation
that he has committed one or more of the acts listed in Articles 4 through 6 of the Anti-
Corruption Statute and has returned all proceeds of the crime may have his punishment
reduced or exempted. Such person shall be exempt from punishment if as a result of his
surrender and his assistance to the police, other accomplices are arrested (Article 8 of Anti-
Corruption Statute).
A person accepting a bribe who commits any of the offences stipulated in Articles 4
through 6 of the Anti-Corruption Statute that has a value less than NTD50,000 may have
his penalty reduced (Article 12 of Anti-Corruption Statute).
Facilitation payments, hospitality and gifts
Facilitation payments are not permitted. Hospitality accepted by a public official may only
be allowed in the limited circumstances stipulated in the Integrity and Ethics Directions for
Civil Servants () (the Code). Pursuant to the Code, generally, the value
of each gift should not exceed NTD500. However, for certain special occasions, such as an
engagement, wedding, promotion, retirement, and other occasions stipulated in the Code,
the value of each gift should not exceed NTD3,000. The total value of gifts received from the
same source in one year cannot exceed NTD10,000.
Corporate liability for the acts of subsidiaries, employees and third parties
A corporation is not directly subject to the Anti-Corruption Statute, which is applicable only to
individuals. Likewise, the Criminal Law does not provide for any corporate offences.
Liability of individual directors and officers
Under the Anti-Corruption Statute, the directors or officers of a company will not be
automatically responsible for the transgressions of an employee, unless such directors or
officers had approved or instructed the employee to perform such illegal act. The Criminal
Law likewise does not contain any provisions which would hold directors and officers
responsible for the transgressions of other employees.
Anti-money laundering legislation
Pursuant to Article 11 of the Money Laundering Control Act, a person who disguises or
conceals the property or property interests obtained from a serious crime committed by
himself shall be sentenced to a term of imprisonment of up to five years and, in addition may
be fined up to NTD3 million. A person who conceals, accepts, transports, stores, intentionally
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Taiwan
buys, or acts as a broker to manage the property or property interests obtained from a serious
crime committed by others shall be sentenced to a term of imprisonment of up to seven years
and, in addition, may be fined up to NTD5 million.
In addition, Article 7 and Article 8 of the Money Laundering Control Act impose certain
obligations on financial institutions to ascertain the identity of customers and to report
suspicious financial transactions to the Investigation Bureau of the Ministry of Justice.
Whistleblowing legislation
Pursuant to the Anti-Corruption Informant Rewards and Protection Regulation, a person who
informs the investigating agency or internal affairs agency of an act of corruption committed
by a public official before such offence is known, may be granted a reward following the
conviction of the public official. The reward may range from NTD300,000 to NTD10 million
depending on the severity of the sentence given.
Enforcement agencies
The Ministry of Justice (MJ) has established the:
Department of Government Ethics (MJDGE) which is responsible for the promotion of
Governmental ethics/integrity and the prevention of corruption
Investigation Bureau (MJIB) which is responsible for the prevention and investigation of
corruption.
The MJIB reports to the MJ but the District Court Prosecutors Offices, the High Court
Prosecutors Offices, and/or the Supreme Court Prosecutors Office are all entitled to request
the MJIB to assist with their respective investigations of corruption.
In 2007, the Supreme Court Prosecutors Office established the Special Investigation Division
(SID). SID is responsible for the criminal investigations of high-ranking corruption (eg, the
President, the Vice President, a Minister, or a General) and other serious corruption or serious
economic crime. n
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Thailand
Contributed by Norton Rose Group
TI rankings
80th on the CPI.
International anti-corruption conventions and inter-governmental
organisations
Ratified UNCAC on 1 March 2011. Member of ADB/OECD Asia Pacific Anti-Corruption
Initiative.
Anti-bribery legislation and major offences
Legislation
The principal anti-corruption regimes in Thailand are found in the Penal Code B.E. 2499
(1956) (Penal Code) and the Organic Act on Counter Corruption B.E. 2542 (1999) (OACC).
Both the Penal Code and the OACC deal with only corruption involving public officials and
other types of abuse of public office.
Private sector
At present, there is no private bribery offence under Thai law.
Public sector
The Penal Code deals with different types of corruption, including bribery. However, the
regime is limited to corruption involving public officials or other types of abuse of public
office for personal gain by bureaucrats and elected officials (Public Officials). The law
distinguishes between active (offering) and passive (accepting) bribery and penalises Public
Officials and any person who assists in the commission of the offence. The mere offer or
agreement to give a benefit to a Public Official to undertake, avoid or delay an act which is
contrary to the functions of the Public Official is an offence under the Penal Code.
The OACC prescribes offences for bribery, abuse of public power and accumulation of
unusual wealth by Public Officials. For offences under the OACC the burden is on the Public
Official charged with an offence to prove that he/she did not commit the offence. For offences
under the Penal Code the burden is on the prosecutor to prove that the Public Official has
committed the offence. Under the OACC, the National Anti-Corruption Commission (NACC) can
conduct an investigation to examine the assets of a Public Official where the Public Official
is suspected to have accumulated wealth in an unusual manner. A notification issued
under the OACC (which will come into force on 1 January 2012) will require all Government
procurement projects with budgets exceeding THB50,000 to be declared, separate accounts
to be maintained, and all bank accounts and reports to be submitted to the Department of
revenue together tax filings.
There are also various other public sector acts set up to provide additional tools to tackle
corruption, such as the Official Information Act B.E. 2540 (1997) which sets out certain rights
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Thailand
of an individual to access public information held by public agencies; the Act Regulating the
Offence Relating to the Submission of Bids and Tender Offers to Government Agencies B.E.
2542 (1999) which prescribes certain offences in respect of the bidding process for Government
contracts; the Act on the Management of Partnerships and Securities Owned by Ministers B.E.
2543 (2000) which limits, among others, the quantity of shares in private companies which
can be held by Government Ministers; and the Regulation of the Prime Ministers Office on
Procurement sets up the framework for procurements by Government agencies.
Extra-territorial application
As of 1 November 2011, bribery of foreign officials by Thai nationals abroad is not an offence
under the Penal Code.
Defences and mitigation measures
There are no specific pieces of legislation or guidelines dealing with defences or mitigation
measures by a company to prevent bribery. Generally, setting up and implementation of
bribery prevention measures by a company may demonstrate good corporate governance and
support an argument that the company has a policy against and does not support any corrupt
practice by its employees or agents.
Penalties
Penalties for bribing Public Officials under the Penal Code are imprisonment for a term
not exceeding five years or a fine not exceeding THB10,000, or both. Only monetary fines
will apply to corporations. Generally, a director of a corporation who is complicit in the
commission of an offence by that corporation will be subject to the prescribed penalties,
including imprisonment. Penalties under the OACC include removal from public office and
forfeiture of property.
Facilitation payments, hospitality and gifts
In 2000, the NACC issued supplemental rules governing the acceptance of property or other
benefits by Public Officials. Gifts cannot be accepted unless there is in an appropriate
occasion or circumstance. Gifts given in an appropriate occasion or circumstance and with
a value not exceeding THB3,000 can be accepted without committing an offence under the
OACC. Gifts given in an appropriate occasion or circumstance and with a value in excess of
THB3,000 must either be notified to, and approved by, a superior officer or returned. The
rules apply for a period of two years after a Public Official leaves the public service. There are
no specific guidelines or definitions on what are appropriate occasions or circumstance.
The Regulation of the Prime Ministers Office on Giving or Receiving Gifts by Public Officials
B.E. 2544 (2001) sets out similar rules with respect to the acceptance of property or other
benefit, but extends to cover family members of Public Officials.
Corporate liability for the acts of subsidiaries employees and third parties
There are no specific laws imposing criminal liabilities on companies where an offence
relating to corruption is committed by an employee, agent or officer of the company.
Generally, there is a risk that a company may also be guilty and subject to the same fine as
the employees or agents who committed the offence where there is evidence that: (i) the
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relevant employee or agent acted within the companys objectives, as a representative of
and for the benefit of the company, or (ii) the company (acting through its directors) has
knowledge of, ratified or otherwise enjoyed the benefit of, the offence or (iii) the company
has not taken reasonable steps to prevent such offence.
Liability of individual directors and officers
Under the Penal Code, a person who has taken part in the commission of an offence or
aided or abetted in the commission of an offence by another person will be considered as
the principal or supporter (as the case may be) in the commission of such offence and
punishable accordingly. As a result, an individual director or officer of a company can be held
liable for the offence with the company, if he or she is considered to have taken part in the
commission of an offence or aided or abetted in the commission of an offence by the company.
Anti-money laundering legislation and reporting obligations
One of the principle objectives of the AntiMoney Laundering Act B.E. 2542 (1999) (AMLA)
is to stop the concealment or disguise of proceeds from offences specified under the AMLA
(Underlying Offences). The Underlying Offences include the improper exercise of power by
Public Officials under the Penal Code. The AMLA also established the Anti-Money Laundering
Commission to monitor and suppress money laundering activities.
The principal offences under the AMLA are to:
transfer, receive, or change the form of an asset involved in the commission of the
Underlying Offence for the purpose of concealing or disguising the origin or source of
that asset, or for the purpose of assisting another person before, during, or after the
commission of an offence, to enable the offender to avoid or receive a lesser penalty for
the relevant offence
conceal or disguise the true nature, location, sale, transfer, or interest in an asset
involved in the commission of the Underlying Offence.
For the purposes of the AMLA, asset involved in the commission of an offence means
(i) money or property derived from the commission (or aiding or abetting in the commission)
of an Underlying Offence, (ii) money or property derived from the sale, distribution, or transfer
of the money or property referred to in (i) above, and (iii) any interest derived from money or
property referred to in (i) or (ii) above.
A person who (i) commits an offence under the AMLA, (ii) aids or abets in the commission
of an offence under the AMLA or (iii) attempts to commit an offence under the AMLA, may
be subject to imprisonment for a term of one to 10 years, or a fine of between THB20,000 to
200,000, or both. The asset involved in the commission of the Underlying Offence may be
subject to forfeiture at the courts discretion. These offences apply to both individuals and
corporations. Where a corporation has committed certain specified offences under the AMLA,
a director, managing director, or any person responsible for the operation of that corporation
may be subject imprisonment, a fine or both, unless he or she can prove that he or she had
no part in the commission of the offence.
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The AMLA imposes an obligation to report suspicions of anti-money laundering activities to
the Anti-Money Laundering Office. However, such obligation is imposed on only financial
institutions, the Land Offices (the Government land department which records dealings
involving land) and any person who is engaged in (or advising on) investment transactions or
investment funds.
Whistleblowing legislation
The 2011 amendment to the OACC introduced provisions which established protective
measures for whistleblowers. Such protections include a safe house, a police escort,
allowance and changing the name and other registrations or identification cards of a
whistleblower. The protections also extend to cover close family members of a whistleblower.
The OACC also provides incentives for whistleblowers in respect of the corrupt practices
under the OACC. The NACC may award a prize to a whistleblower who has reported or
provided evidence or testified in proceedings or, in cases where the whistleblower is a Public
Official, propose to the Ministerial Cabinet to promote the whistleblower. There is currently no
express obligation under any statute requiring the public to whistleblow when they encounter
corrupt practices in Thailand.
Enforcement agencies
Allegations of corruption under the Penal Code are generally prosecuted by the Office of
the Attorney General in the criminal court either directly or on the recommendation of an
independent anti-corruption commission. Prosecutions of corrupt politicians are brought
before the Supreme Courts Criminal Division for Persons Holding Political Positions
established under the OACC. Prosecutions of other Public Officials are brought in the general
criminal court system.
The two principal independent anti-corruption commissions are the NACC, which was
established by the OACC, and the Office of Public Sector Anti-Corruption Commission (PACC),
which was established by the Act on the Administrative Measures for Anti-Corruption B.E.
2551 (2008). The NACC investigates allegations of corruption involving bureaucrats at or
above a specified rank and elected officials, while the PACC investigates allegations of
corruption involving other bureaucrats. Both commissions are empowered to conduct their
own investigations and collect evidence (including the authority to compel production of
documentary and oral evidence) and make recommendations to the Office of the Attorney
General. The OACC also allows the NACC to seek information from banks holding the client
and account information on Government procurement projects suspected of bribery or
corruption. In practice, allegations of corruption are more often brought before the NACC or
PACC, rather than the Office of the Attorney General directly, as the commissions have the
relevant specialist resources and skills. n
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Vietnam
Contributed by Vision & Associates Legal (associate office of Norton Rose Group)
TI rankings
112th on the CPI.
International anti-corruption conventions and governmental organisations
Ratified UNCAC. Member of ADB/OECD Asia Pacific Anti-Corruption Initiative.
Anti-bribery legislation and major offences
Legislation
In Vietnam, the primary anti-corruption statute which prescribes the various forms of
corruption as separate, substantive offences is the Law on Anti-Corruption (No 55/2005/
QH11). Other statutes that deal with corruption and bribery include the Penal Code (No
15/1999/QH10 as amended by Law No 37/2009/QH12) and the Law on Thrift Practices and
Anti-Wastefulness (No 48/2005/QH11).
In addition to the statutes, there are many ministerial decrees, circulars from ministries and
other legislative instruments that are important. These include Decree 37/2007/ND-CP on
Asset and Income Transparency which has been amended by Decree 68/2011/ND-CP. This
provides that a very wide range of State officials, from members of the National Assembly
to school principals, must file confidential statements of their assets and income. The
confidentiality that attaches to these statements is in contrast to the lack of anonymity
afforded to whistleblowers under the legislation.
The National Assembly has announced that it will prepare amendments to the Law on
Anti-Corruption in 2012. On 7 April 2010, the Prime Minister issued Decision 445-QD-TTg
Approving a Plan on Implementation of the United Nations Convention against Corruption.
Article 2(a) of the Decision comments that Fundamentally the law of Vietnam is consistent
with the contents of the Convention but lacks specific items and is incomplete.
Private sector
Although Vietnams legislation does not generally focus upon private sector corruption and
bribery, developments in this area are occurring. In 2007, Decree No 47/2007/ND-CP on
Implementing the Law on Anti-Corruption was introduced to encourage the private sector to
assist in the reduction of anti-corruption and bribery through reporting its existence.
Public sector
The Law on Anti-Corruption and the Penal Code create domestic bribery offences involving
public officials accepting or giving bribes. The main corruption offences involve the receipt of
bribes connected with the performance of duties, the offering of such bribes and the abuse of
position, by reason of a bribe, in order to obtain an advantage. Both sets of laws include civil
servants and managers of State-owned companies.
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Vietnam
The Law on Anti-Corruption prohibits officials from committing corrupt acts, which includes
taking bribes and taking advantage of positions while performing official duties (Articles
3 and 10). Overall, the Law on Anti-Corruption prescribes systems that are designed to
discourage bribery and other forms of corruption, whereas the Penal Code prescribes
offences and penalties. The Penal Code Article 279 provides offences for receiving and giving
bribes respectively. The elements for the offence of receiving a bribe are:
the recipient must have powers or a particular responsibility that they have taken
advantage of
the recipient has received (either directly or through a middle man) money, property or a
material interest with a value of VND2 million or more (or under VND2 million in particular
circumstances)
the recipient has performed or not performed certain jobs for the benefit or request of the
bribe offeror.
The elements for the offence of offering a bribe are that the bribe must be offered and must
be VND2 million or more (or under VND2 million but causes serious consequences or be
committed more than once).
The Law on Thrift Practices and Anti-Wastefulness prohibits the use of public funds by public
officials for certain restricted activities such as parties and dinners.
Bribery of foreign public officials is not yet an offence, but an attempt to bribe a foreign public
official may fall within the general ambit of the Penal Code offences and persons who abuse
their positions and/or powers to act contrary to the interests of the State and the society and/
or the legitimate rights and interests of citizens.
Extra-territorial application
While the Law on Anti-Corruption is silent on extra-territorial application, it works in parallel
with the Penal Code. The Penal Code applies equally to all offences committed by Vietnamese
citizens within or outside of Vietnam. Foreigners who commit offences outside of Vietnamese
territory may also be tried under the Penal Code within Vietnam (subject to applicable
international law Articles 5 and 6 of the Penal Code).
Defences and mitigation measures
The Penal Code articles provide for particular defences and mitigation measures. Under
Article 289.6, persons who are coerced to offer bribes but take initiative in reporting them
before being detected may be exempt from penal liability.
Penalties
For giving a bribe between VND2 million to 10 million (or below VND2 million which causes
serious consequences), the punishment is between one to six years imprisonment. For giving
a bribe between VND10 million (about US$500) and VND50 million (about US$2,500), the
punishment is between six months and 13 years imprisonment. For giving bribes between
VND50 million and VND300 million (about US$15,000), the punishment is between 13 and
20 years imprisonment. For giving bribes in excess of VND300 million, the sentence is 20
years or life imprisonment.
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The sanctions for receiving bribes are equally harsh: for bribes between VND2 million and
10 million (or below VND2 million but causing serious consequences) the penalty is two
to seven years imprisonment. For bribes between VND10 million and 50 million, the
punishment is seven to 15 years imprisonment. For bribes between 50 million and 300
million, the punishment is 15 to 20 years imprisonment. For bribes over VND300 million,
the penalty is 20 years or life imprisonment, or death.
For each offence, the offender may be subject to a fine in addition to imprisonment, and
officials may also be subject to confiscation of assets and administrative sanctions and
may be banned from holding certain posts.
Acting as an intermediary for a bribe also carries very serious punishments, although they are
less severe than those listed in above.
Facilitation payments and gifts
Decision 64/2007/QD-TTg of the Prime Minister regulates the giving and acceptance of gifts
by State Officials. Decision 64 provides that gifts under VND500,000 may be accepted in
certain circumstances but otherwise all other gifts much be refused and/or reported.
Corporate liability for the acts of subsidiaries, employees and third parties
Current legislation does not expressly refer to corporate liability for bribery offences.
However, note that under Article 87 of the Law on Anti-Corruption, companies must report
corrupt acts.
Liability of individual directors and officers
Individual directors and officers may be liable under the general offences of the Penal Code.
In addition, the Law on Enterprises required all directors and managers to act honestly and
in the best interests of the company, to act in accordance with the law, and not to use their
position to benefit other individuals.
Anti-money laundering legislation and reporting obligations
The main legislation addressing this topic is Decree 74/2005/ND-CP and Circular 22/2009/
TT-NHNN of the State Bank of Vietnam.
The regulatory authority is the Anti-Money Laundering Authority, which is part of the State
Bank. In Decision 470/2009, the Prime Minister established the Anti-Money Laundering
Steering Committee to administer and co-ordinate activities to fight money laundering.
A new Law on Anti-Money Laundering is scheduled to be passed at the sittings of the National
Assembly towards the end of 2011.
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Vietnam
At present, money laundering is addressed as a criminal offence by Articles 250 and 251 of
the Penal Code. It can carry up to 15 years imprisonment.
Whistleblowing legislation
Although the Law on Anti-Corruption 2005 purports to offer protection and anonymity to
whistleblowers, in practice for a complaint to be processed by the Office of the Steering
Committee for Anti-Corruption, the whistleblower must give their name and address when
submitting their complaint.
There is currently no express obligation conferred by the Law requiring the public to
whistleblow when they encounter corrupt practices in Vietnam. However, public officials are
obliged to report any corrupt practices that they encounter.
Enforcement agencies
Vietnam has five main agencies which assist in the detection, and investigation, of people
caught engaging in corrupt practices.
The Office of the Central Steering Committee for Anti-Corruption, which was established by
the Law on Anti-Corruption 2005, and is chaired by the Prime Minister. Its duties include
overseeing the Governments anti-corruption initiatives.
The Ministry of Police.
The Government Inspectorate oversees all complaints of corruption, the inspection of that
corruption and any disputes that may ensue. It is also working jointly with the World Bank
on the Vietnam Anti-corruption Initiative Program 2011.
The Peoples Procuracy manages the prosecution of persons involved in the perpetration
of corruption.
The State Audit of Vietnam is in charge of auditing the Governments budget, and ensuring
that no corruption occurs. n
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Key anti-corruption issues
Anti-corruption compliance
Although there are great challenges for companies seeking to drive out corruption without
losing their competitive edge, it is a mistake to view anti-corruption compliance as an
obstacle to achieving a successful business. Instead, good compliance systems should lead
to more efficient operations. Undoubtedly, the key to effective anti-corruption compliance
both in the private and public sectors is the quality and integrity of senior management and
officials. They can set the tone by putting in place and maintaining effective anti-corruption
policies to secure compliance.
Key compliance considerations should include:
Clear anti-corruption policies which should address the following:
procurement
gifts and hospitality
facilitation payments
charitable donations and political contribution
third party due diligence.
Assessing the risk of operations in high risk or Red Flag countries, particularly
transactions involving politically exposed individuals and Government entities.
Documenting all dealings with Governmental bodies. Lack of such records will be highly
prejudicial in any corruption investigation and, for certain regulated entities, an offence
in itself.
Assessing the risk of third party transactions, such as agencies and distributorships, which
can mean that effective control over transactions is lost but with potential corruption
liabilities retained. The company should ensure that, where possible, business partners,
joint venture partners, vendors and suppliers carry on business in a manner that accords
with its policies.
Carrying out effective investigative due diligence when appointing employees, agents,
brokers, particularly so, in Red Flag countries.
Considering whether the structures setting compensation and commission levels for
employees and agents creates or indicates a corruption risk. Overly generous commission
levels may serve to allow corrupt inducements. An embedded corporate culture of selling
or securing contracts at all costs has been identified as a major driver of corruption.
Using independent corporate compliance monitors and an autonomous board committee
with responsibility for ensuring ethical compliance.
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Key anti-corruption issues
Auditing with unrestricted access to sensitive commercial information.
Training employees and third parties on corruption policies not merely, box ticking or
multiple choice exercises, but through live and online training.
Using IT systems which are capable of analysing all aspects of an organisations financial,
accounting and business activities.
M&A transactional due diligence
Considering the potential violations of anti-corruption laws has now become a critical
component of transactional due diligence. However, in the first instance, it is the potential
seller who should be forewarned of the nature and risk of such a due diligence exercise.
Where necessary, the seller, by carrying out appropriate pre-transaction due diligence may be
able to identify deficiencies and take the necessary remedial action. Doing so may avoid an
abortive transaction and limit its exposure to financial and criminal penalties. The seller must
also consider the type of confidentiality undertakings that should be sought or given and
what warranties and indemnities should be given. The seller should appreciate that, where a
bidders due diligence uncovers corrupt practices, matters may take a course of their own if
the existence of corruption is reported by a bidder or its advisors.
A due diligence process should not be viewed as a mere box ticking exercise, but as a
common sense, often intuitive process, which must be structured, measured and organised.
The absence of information or any concrete facts or proof of corruption may not by itself
constitute an all clear. A due diligence team should therefore remain alert to spotting red
flags and look into the substance of the matter rather than the form.
The target or the seller could, for instance, produce volumes of incorporation documents,
references and contracts in respect of the targets transaction counterparty, but if there is lack
of business objective for such counterpartys engagement, or it lacks the skill and expertise
to provide the services for which it has been engaged, or no evidence exists as to the services
provided in return for the payments made to it, it can potentially be a sham structure for
channelling bribes.
Where a buyer is concerned about the risk of corruption, it may be advisable to establish
a process whereby the due diligence review must be approved by a team within the buyer
which is separate and independent of the team which is responsible for completing the
transaction.
Without adequate corruption due diligence, acquirers and their officers run the risk of
post-acquisition financial and criminal liabilities for the target companys violations. An
unforeseen corruption investigation or trial will almost certainly mean that the price paid
would not reflect the targets true value. It will inevitably result in meeting investigation and
potential trial costs, loss of management time, suspension or loss of existing contracts,
disgorgement of benefits received and a consequent loss of goodwill and reputation.
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Although the nature of the due diligence exercise depends on the nature of the particular
transaction and the targets activities, pre-acquisition steps may include:
carrying out an initial corruption risk assessment of the target
preparing anti-corruption questions to establish the existing compliance culture
assessing the information produced to determine:
the likely risk and value of the target
the warranties and indemnities that should be extracted and whether or not indemnities
will actually be effective, particularly, in respect of criminal or quasi-criminal sanctions
whether there should be self-reporting or guidance sought from the relevant authorities
whether remedial action or regulator approval or the exclusion of a particular
intermediary should be made a pre-condition for entering into the transaction.
A client should appreciate that discovery of anti-corruption violations may jeopardise
transactions unless effective and transparent action is taken prior to closing deals. Subject
to anti-money laundering reporting obligations, such action may involve self-reporting and
giving undertakings to the relevant authorities that independent investigations will be carried
out into the disclosed violations, that the results of such investigations will be disclosed, that
effective and remedial action will be taken and that new compliance procedures will be put
in place. It is also possible that professional advisers may be unwilling or unable to act in the
face of unacceptably high corruption risks.
Following completion of a transaction, the buyer must consider what remedial action is
required, the extent to which a new compliance system should be introduced and carrying
out further and more detailed due diligence into the target both for operational purposes
and bringing any warranty or indemnity claims. That due diligence exercise would normally
include a thorough examination of relevant accounts, records, emails and interviews with all
relevant staff.
On discovery of corrupt practices the buyer must quickly consider, with its external advisers,
the advisability or otherwise of referring/reporting of corrupt activities and taking the
necessary remedial action.
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Key anti-corruption issues
Impact on M&A transactions
Due Diligence Finding a problem Protecting a buyer
The SPA:
Post-exchange DD
and pre-completion
undertakings
CPs/MAC/
Termination rights
Warranties and
indemnities
Continuing dialogue
with regulator
Deferred
consideration,
retentions/escrow
Put option
Post completion:
Access to
accounting and
other records
New contracts for
employees and
agents
New or improved
procedures
Cross contamination
of group
Communication
channels for
reporting issue
Suspicious
transaction or
activity reports to be
lodged with relevant
authorities
Self-reporting?
Impact of
investigation on
timetable
What further
investigations need
to be carried out?
Potential liability
issues for your client
Reputational issues
Debarring from public
procurement
Anti-corruption DD is
increasingly the norm
especially if red
flags are present
Engage compliance
risk experts, forensic
accountants, if high
risk issues arise
Identify the red
flags and use a
specific DD request
list to draw out
information
Gap analysis of
existing procedures
of the Target group
Q&A with Targets
management and
compliance officers
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Red flags
The presence of red flags indicates that something is out of the ordinary and may need
to be investigated further. Red flags can be identified either at the very initial stage of the
transaction (for example, the target being based in a high risk jurisdiction can by itself signify
a red flag), or later on in the transaction, as the targets arrangements are further scrutinised
and/or further information is made available (for example, suspicious activity by an agent or
the discovery of facilitation payments).
Red flags are not intended to indicate guilt or innocence, but merely to provide warning signs
of the risk of corruption, bribery and/or fraud. The following examples of red flags should be
used as guidance rather than as an exhaustive list:
Red flags to spot
in a company
Red flags to spot
in management
Red flags to spot
in finance
Red flags to spot
in employees
Red flags to spot
in third parties
Red flags to spot
in transactions
Frequent disputes/
insurance claims
Close relationships
with competitors
Lack of reputable
professional
advisers
Place of
incorporation and
operation
Financial difficulties
Employee turnover or
lack of training
Weak internal
policies and
procedures
Poor regulatory
relationships
Powerful controlling
individual or group
Complex structure
Over-dependence
on IT solutions
and internal and
external auditors
at the expense of
maintaining a visible
and enforceable anti-
corruption policy
Reluctance
to provide
information to
auditors
Powerful
controlling
individual or group
Lack of
communication
High management
and staff turnover
Weak internal
controls
Failure to address
irregularities
Management
doing subordinate
work
Secrecy and lack
of transparency
Recording
revenue before it
is earned
One-off deals to
boost profits
Frequent bank
account changes
Failing to record
transactions/
liabilities
Unwillingness of
internal auditors
to confront senior
management
Excessive/
unjustified cash
payments
Unusual
amounts/too
many round
numbers
Unusual timing of
transactions
Off-balance sheet
items
Inflexible money
laundering
systems
Lifestyle/
behaviour
changes
Personal
financial or other
problems
Abnormal
expenses/
overtime
Lack of holiday
Overly protective
of duties
Key staff
recruited by
executives from
former employer
Close
relationships
with suppliers,
customers,
competitors
Avoidance of
management/
colleagues
Pressure to
generate
cashflow/capital
Lack of formal
agreements
Unqualified or
overpaid staff
Unrealistic
forecasts or
promises
Complicated
structure
Excessively
complicated
transactions
Unusual
transactions
Obscure complex
cancellation
provisions
Dominant
controlling
individuals
Lack of
commercial
justification
Lack of
involvement
of reputable
advisers
Missing or
unnecessarily
photocopied
documents
Overstated
inventories or
receivables
Sellers or
buyers without
addresses
Inventory
plugging
Unusual nature
of transaction
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Key anti-corruption issues
Joint ventures and third party due diligence
Joint ventures
Ensuring the effective implementation of anti-bribery procedures in a joint venture is key to
minimising liability for any corruption offences committed by the joint venture entity. This
will inevitably be harder to achieve where a company does not exercise a sufficient degree of
control over the joint venture or investment entity. For example, in certain jurisdictions foreign
investors are not permitted to hold a controlling stake in a local enterprise. The fact that
those same jurisdictions are often those characterised by higher risks of corruption presents
an obvious risk to a minority foreign investor.
Not having a controlling stake in an entity may not be a defence under the UK Bribery Act
(although it may be a relevant factor) and whilst it is arguably less likely that liability for a
commercial organization (C) will arise in respect of the actions of its joint venture partners,
ultimately the courts will have a wide discretion in determining whether a joint venture vehicle
or a joint venture partner is an associated person (A) for the purposes of the UK Bribery Act,
taking into account all relevant circumstances. These circumstances may include:
the degree to which A was able to act independently from C
the particular facts of any joint venture or consortium arrangements, both documented and
arising by virtue of the parties conduct, between A and C.
Third parties
Third parties include a broad range of entities and individuals that act on an enterprises
behalf, including agents, consultants, representatives, re-sellers, sub-contractors, vendors,
franchisees, advisers or similar intermediaries. A commercial organisation may use third
parties for marketing or sales or as subcontractors in the supply chain, in the negotiation of
contracts, the obtaining of licences, permits or other authorisations, or for any other actions
that benefit the commercial organisation. Often, these third parties may not be subject
to effective anti-bribery laws, but a company may well be liable for any corrupt practices
employed by such third parties on its behalf and for its benefit, if those parties are not
carefully selected or are inappropriately managed.
As international anti-corruption laws exert their impact on global companies and their dealings
with other companies, a system of corporates policing corporates is undoubtedly beginning
to emerge. In order to protect themselves from liability and reputational harm attaching to them
from other potentially corrupt business entities, commercial organisations are increasingly
requesting details of the anti-corruption policies and procedures of the companies with which
they enter into business relationships. This is intended to enable them to show, for example,
that they have adequate procedures in place. Companies which do not have satisfactory anti-
corruption procedures may lose out on business. However, the need to carry out due diligence
of third parties is often easy to state in theory but more difficult to achieve in practice, primarily,
on account of the fact that the amount of due diligence that can actually be carried out will
depend on the economic bargaining power of the third party. For instance, an in-demand
specialist sub-contractor, supplier or successful distributor faced with a request for ongoing
audit or monitoring rights may simply refuse to get involved at all particularly, in circumstances
where that third party is not exposed to international bribery legislation.
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A lack of control over an agent or a third party will not necessarily extricate a company from
potential liability for the bribes paid by agents or other third parties acting for it, although it
may be a relevant factor to be taken into account, amongst others.
There may be instances, particularly in high risk jurisdictions, in which the distribution
channels employed by a company may make these relationships more complex and more
difficult to control. For example, a counterparty may only be willing to work with a company
if a certain agent is involved and, in practice, this agent may have wide discretion as to
how its services are provided, leaving a company with little or no control over the agents
conduct and therefore potentially exposed. A failure to carry out due diligence or requiring
compliance from third parties, particularly, in high risk countries may carry substantial and
often unacceptable compliance risks. Accordingly, a balanced, proportionate and informed
approach must be taken.
For example, as a result of a risk assessment, certain bribery risks may be identified with the
need to use an agent in dealings with a Government for a particular project. In this scenario,
due diligence as a form of risk mitigation should involve performing background checks on
the prospective agent. This allows the potential agent to be appointed for that particular
transaction. Where a company has operations carried out by another individual or entity on
its behalf, even in small part, particularly in difficult jurisdictions, it is important to ensure
that at the very least, there is a review of its anti-bribery policies, that the third party is aware
of and commits itself to the anti-bribery policies of the principal, that it is made aware of a
zero tolerance culture within the organisation, that it is subject to appropriate due diligence
and monitoring and that there are anti-bribery declarations and contractual anti-bribery
warranties and termination provisions.
Crucially, commercial organisations are becoming increasingly concerned with compliance
with national and international anti-corruption legislation even if those laws do not directly
apply to them.
Corruption investigations
The operation of effective compliance systems may deter but cannot be guaranteed to
eradicate corruption. For that reason organisations are increasingly expected to look critically
at their practices and procedures, particularly where there is a suspicion of wrongdoing. All
businesses must now be prepared to manage their own internal investigations effectively and
with particular regard to the possibility of external scrutiny and incident fallout. Procuring an
effective and rigorous investigation may also be a particularly important mitigating factor in
the event that any wrongdoing is uncovered by the relevant authorities.
Key principles
Ensure compliance with applicable laws, regulations, contractual terms and internal
policies.
Ensure investigation is impartial, fair and perceived to be so.
Maintain discretion, confidentiality and privilege as appropriate.
Discourage the proliferation of documentation.
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Key anti-corruption issues
Secure co-operation from regulators, employees and business partners.
Ensure the protection of employees.
Managing media and reputational issues.
At the outset of a corruption investigation, it is vital to deal with the corrupt activities and
limit their damage without jeopardising the companys commercial and legal position.
Accordingly, it is vital to engage external legal resources as soon as possible to advise on
how to tackle the problem and in particular, how best to maintain confidentiality and legal
professional privilege.
Part of any initial damage limitation exercise will involve the cancellation of relevant
payments and contracts, obtaining freezing injunctions to preserve assets for future
enforcement and preserving evidence by confiscating files, computers and other digital
storage devices. Again, these are matters on which external legal advice must be taken.
Most corruption events will require an initial internal investigation. The form of that
investigation will depend on the type and location of the corrupt activity, the companys
operations and the number of individuals involved. However, it is essential that such
an investigation is both impartial and fair and perceived to be so. When assembling an
investigating team, it is important to ensure the independence and impartiality of both
internal members and external resources. For instance, it may not be appropriate to retain
forensic accountancy services from existing auditors or accountants.
It is absolutely essential that extreme caution is exercised in relation to waiver or partial
waiver of privileged documents and the creation of non-privileged documents during the
investigation. In addition, as an investigation will often involve looking at a lot of documents,
sourcing documents and creating documents across different jurisdictions, consideration
must be given to the applicability of respective data protection laws.
The investigating team must consider whether its terms of reference and remit are sufficient,
identify issues and establish a plan to collect and consider the documentary evidence on
which to conduct interviews with relevant personnel.
It will be important to put in place efficient reporting and communication lines both between
investigative team members, management and the Board. As part of that exercise, the
creation of documentation and email traffic should be strictly controlled.
It is vital that the investigating team should carefully plan and conduct interviews.
Consideration must be given to whether or not advance disclosure should be given to
interviewees; the provision of legal representation for interviewees; venues and recording the
interviews. These are matters on which external legal advice should be sought.
On completion of interviews, the investigating team should compile a written report based on
the evidence and interviews and make the necessary written recommendations to the Board.
Going forward this will be an important and confidential document. Documentation generated
as a result of the investigation process, including the written report, should be protected by
legal professional privilege. External legal advice should be taken on how best to do so.
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The Board must then take external legal advice to consider, amongst other matters, potential
obligations under self-reporting regimes, money laundering obligations and how best to take
effective remedial compliance action.
Immediate actions Preparing for investigation Conducting investigation
Contain and preserve
Damage limitation:
suspension of individuals
or activity
notification
cancellation of mandates and
proxies, payments, contracts
freezing injunctions
Preservation of evidence:
document preservation
notice/suspension of
document destruction
confiscation of devices and
access restrictions
instruction of forensic
computer experts
Assess the situation:
which offices, jurisdictions and
business areas are affected?
which periods of time are
relevant?
whose actions need to be
scrutinised? Third parties?
is it live?
Assemble the team
Independence
Internal and external
resources
Reporting lines
Communication lines
Scope and plan
Identify the objective
Set the terms of reference
and the remit
Identify the issues
Consider whether and what
documentation will be
required
Prepare a plan, timeline and
communications strategy
Gather and review the evidence
Sources (hard copy files;
electronic devices; recordings;
third parties)
Storage review
Plan and conduct interviews
Pre-interview steps
Check employment contracts
and staff handbook
Consider recording method and
approval of the record
Plan the interview sequence,
introduction and skeleton
Consider provision of advance
documentation
Consider representation issues
Conduct interviews
Analyse, report and react
Analyse (update documents;
reconsider issues; reach
conclusions)
Prepare and present any written
or oral report as required
Implement recommendations
and take follow up steps
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Anti-bribery regimes in the UK and US
Anti-bribery regimes in the UK and US
Summary of UKs anti-corruption regime
Although the FCPA has been the most important piece of extra-territorial anti-bribery
legislation for international business in the last 30 years, it is evident that the UK Bribery
Act, which came into force on 1 July 2011, has raised the bar and gone beyond the FCPA in
many respects. Meeting the stringent standards set by the UK Bribery Act would, in almost all
cases, meet or surpass the requirements of the FCPA.
New bribery offences
The UK Bribery Act introduces two general offences of bribing and being bribed: a new
specific offence of bribing a foreign public official; and a new corporate offence for failing to
prevent corruption (which is based on strict liability, subject only to a defence of having in
place adequate procedures to prevent bribery (the corporate offence).
Where any of the general offences are committed by a body corporate with the consent or
connivance of a senior officer (defined as a director, manager, secretary or other similar
officer) of that body corporate, or a person purporting to act in that capacity, both that
individual and the body corporate will be guilty of the same offence. However, where the
general offence is committed outside the UK, the senior officer will only be guilty if he or she
has a close connection with the UK.
The corporate offence will be of particular importance for international companies on account
of the fact that liability will extend to any foreign companies carrying on a business or part of
a business within the UK whenever a bribe is paid by a person associated with the company.
In March 2011, the Ministry of Justice published statutory guidance regarding the procedures
that must be in place if a commercial organisation is to successfully defend a prosecution for
failing to prevent bribery under Section 7 (the Guidance).
The Guidance has sought to clarify which foreign companies will fall within the scope of
the offence of failing to prevent bribery. The Guidance states that a foreign company with a
subsidiary in the UK is not necessarily carrying on a business or part of a business in the
UK and so may not, by that mere fact alone, be subject to the jurisdiction of the UK Bribery
Act. The Guidance also suggests that a company will probably not be carrying on business in
the UK merely because it is listed on a UK stock exchange.
The Guidance emphasises that an organisations procedures to prevent bribery should be
proportionate to the particular bribery risks faced by that organisation and to the nature,
scale and complexity of its activities. The Guidance sets out Six Principles for adequate
procedures:
proportionate procedures
top-level commitment
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Anti-corruption laws in Asia Pacific
risk assessment
due diligence
communication (including training)
monitoring and review.
The definition of an associated person remains a broad one (namely, someone who
performs services for a business). The Guidance has confirmed that a subsidiary will not
always be the associated person of its parent company (for example, if it merely remits
dividends to its parent). The Guidance also explains that an organisation is only liable for the
actions of its associated person if the bribe was intended (by such an associated person) to
benefit the organisation directly. It clarifies that a bribe paid by an employee of a subsidiary
is normally intended to benefit the subsidiary and not the parent company, even though the
parent may benefit indirectly. Thus a parent will not always be caught by bribes paid by or on
behalf of a subsidiary.
The Guidance explains that a contractor or a supplier will generally be deemed to perform
services only for the entity with which it has a direct contractual relationship.
In the case of joint ventures, the Guidance suggests that an employee of the joint venture
entity is likely to be performing services for that entity only and will not be associated with
the participants in the joint venture. In addition, a bribe paid on behalf of the joint venture
may be deemed to benefit the joint venture entity only, even though the owners may benefit
from it indirectly. Thus shareholders may not be held liable for all activities of the joint venture
company. The situation becomes more complicated if the employee of the joint venture entity
was seconded by (and remains an employee of) one of the joint venture participants.
Where the joint venture is conducted through a contractual agreement, the Guidance states
that an employee of one of the parties is likely to be associated with his direct employer only,
and a bribe paid by the employee is probably paid for the benefit of the direct employer only.
The degree of control that each party has over the joint venture arrangement will be a relevant
factor in this respect.
Hospitality
Reasonable and proportionate business hospitality that seeks to showcase products or
services or to cement relationships will fall outside the scope of the offence. Hospitality
will constitute bribery only if the provision of the hospitality is intended to induce someone
to breach a relevant duty defined in the Act or to influence a foreign public official. The
Guidance provides examples of acceptable hospitality, such as taking a client to a sporting
event, or paying for a foreign public official to travel abroad for a site visit and then providing
a meal and entertainment. Most commercial organisations will already have policies in place
regarding hospitality, gifts and entertainment and they should continue to exercise their good
judgment and common sense as to what is proportionate in the circumstances.
Norton Rose Group 91
Anti-bribery regimes in the UK and US
Facilitation payments
The Bribery Act provides no exemption for facilitation payments which, in common with the
vast majority of international legal systems, will amount to bribery (with the exception of legally
required administrative fees, or fast-track services). The elimination of facilitation payments
remains a UK Government objective because such payments are perceived to have a corrosive
effect on the countries in which they are paid. However, the UK Government acknowledges the
difficulty of eradicating such payments in the short term and has provided some comfort to
businesses by confirming that prosecutorial discretion will be applied where necessary.
The message from the Guidance is that a commercial organisation can demonstrate that
it has adequate procedures by conducting regular risk assessments and implementing
proportionate measures to address the risks identified. The Guidance has a strong commercial
focus. It addresses the question of which foreign companies will fall within the scope of the
offence of failing to prevent bribery together with providing much needed clarification on the
issues of corporate hospitality and facilitation payments. However, it remains the case that the
Guidance may have limited weight in the English courts: the Guidance does not have the force
of law and can be revised by the Secretary of State at any time. The effect of the Bribery Act will
depend on how it is interpreted by prosecutors and the courts and, ultimately, there remains a
risk that they will approach issues such as associated persons or the territorial scope of the
Act more broadly than the Guidance suggests.
Finally, whether or not a companys activities come within the scope of the UK Bribery Act,
strict bribery laws are becoming more commonplace around the world. China, for instance,
has recently introduced measures to combat the bribery of foreign public officials and other
countries are expected to follow suit. A further incentive for all companies to address their
bribery risks as a matter of urgency is that their business partners, for their own protection
and reputation, will increasingly expect to see evidence that a business has in place
adequate procedures. If such evidence is not forthcoming, the possibility of certain business
relationships being lost, or at least, affected, cannot be ruled out.
The US Sentencing Commission Guidelines Manual (US Guidelines)
Although the US Guidelines are a sentencing tool, they set out valuable guidance on what
constitutes an effective compliance and ethics programme to prevent corruption. The US
Guidelines spell out what a corporation or other organisation must do to have an effective
compliance and ethics program, and they permit a reduction in sentence for a firm with an
effective program.
Elements of an effective compliance and ethics program
According to 8B2.1(b) of the US Guidelines an effective compliance and ethics program
requires:
effective due diligence to prevent and detect criminal conduct
promotion of an organisational culture that encourages ethical conduct and a commitment
to compliance with the law.
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A company must have in place standards and procedures to prevent and detect criminal
conduct, and this means standards of conduct and internal controls that are reasonably
capable of reducing the likelihood of criminal conduct.
The US Guidelines require:
the board of directors or equivalent body must be knowledgeable about the compliance
and ethics program and must exercise reasonable oversight of the program
ultimate responsibility for the program must rest with a high level member of management
the responsible officer to be given adequate resources for implementing the program and
effective reporting rights to the board of directors
effective and ongoing training programs for directors, officers and managers
effective monitoring of compliance with the program.
The US Guidelines impose affirmative duties on a company to achieve compliance by:
taking reasonable steps to ensure that the compliance and ethics program is actually
being followed, and this includes the use of auditing and monitoring systems designed to
detect criminal conduct
periodically evaluating the effectiveness of the program
implementing and publicising a system by which employees and agents may be
incentivised to report actual or potential criminal conduct without fear of retaliation
taking effective remedial action on discovery of criminal conduct.
The US Guidelines provide that a firms sentence may be mitigated if it had an effective
compliance and ethics program in place during the time of the criminal activity and if it has
fully cooperated in the investigation of the offence, which in practice, may entail the
waiver privilege.
The main differences between the UK Bribery Act and the FCPA
Bribery of foreign (public) officials
Both the UK Bribery Act and the FCPA make it an offence to bribe foreign (public) officials.
Under the UK Bribery Act a foreign public official is defined more narrowly than under the
FCPA but still includes:
anyone who holds a foreign legislative or judicial position
individuals who exercise a public function for a foreign country, territory, public agency or
public enterprise
any official or agent of a public organisation.
Norton Rose Group 93
Anti-bribery regimes in the UK and US
Private-to-private bribery
The FCPA does not cover bribery on a private level, unlike the UK Bribery Act, although such
conduct can be caught under other US legislation.
Active and passive bribery
The FCPA only covers active bribery, that is to say the giving of a bribe. In contrast, the UK
Bribery Act prohibits both active and passive bribery ie, the taking of a bribe.
Failure to prevent bribery
The UK Bribery Act creates a strict liability corporate offence for failure to prevent bribery
(as opposed to vicarious liability) subject to being able to establish that a company has
adequate procedures. Under the FCPA, however, a company subject to US jurisdiction can
be held vicariously liable for acts of its employees and agents. The UK offence extends to acts
of associated persons which means anyone who performs services for or on behalf of the
commercial organisation.
Intent
Under the FCPA it must be proved that the person offering the bribe did so with a corrupt
intent. The UK Bribery Act does not have a requirement for a corrupt intent.
Facilitation payments
The FCPA creates an exemption for facilitation payments whereas the UK Bribery Act makes
no such exception. The Ministry of Justice Guidance, however, confirms that prosecutors will
exercise discretion in determining whether to prosecute. In addition, guidance from the SFO
indicates that where it is considering action, it will be guided by the following factors:
Factors tending in favour of prosecution:
large or repeated payments
facilitation payments planned for or accepted as part of a standard way of conducting
business which may suggest premeditation
indications of active corruption of the official
where the commercial organisation has a clear and appropriate policy setting out
procedures an individual should follow it if facilitation payments are requested and
these have not been correctly followed.
Factors tending against prosecution:
a single small payment which is likely to result in a nominal penalty
the payments came to light as a result of a genuinely proactive approach involving self
reporting and remedial actions
where a commercial organisation has a clear and appropriate policy setting out
procedures an individual should follow it if facilitation payments are requested and
these have been correctly followed
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Anti-corruption laws in Asia Pacific
where a payer was in a vulnerable position arising from the circumstances in which the
payment was demanded.
Promotional expenses
The FCPA provides for a defence to promotional expenses in so far as it can be demonstrated
that they were a reasonable and bona fide expenditure. There is no such defence concerning
promotional expenses under the UK Bribery Act, in relation to foreign public officials, although
the Ministry of Justice has provided some comfort on this aspect in its Guidance.
Penalties
An individual found to have committed an offence under the UK Bribery Act is liable to
imprisonment of up to ten years and/or to an unlimited fine. A company found guilty is
subject to an unlimited fine.
For offences committed under the FCPA an individual can be fined up to US$250,000 per
violation and may also be given up to five years imprisonment. A company guilty under the
FCPA is liable for a fine of up to US$2 million per violation.
Key considerations for FCPA compliant organisations
Business-to-business or commercial bribery must be taken as seriously as bribery of public
officials.
Companies should review gift, hospitality and promotional expense guidelines.
Companies should reconsider policies that allow facilitation payments and develop
strategies to eliminate such payments.
Companies should formalise or revise risk assessment processes.
Companies should expand the scope of their anti-corruption programmes to include all
associated persons and review third party due diligence, contractual protection and
monitoring.
Companies should ensure they have adequate procedures in place; these are a complete
defence for companies under the UK Bribery Act and represent significant protection and/
or sentence mitigation elsewhere.
Norton Rose Group 95
Anti-bribery regimes in the UK and US
FCPA Common ground UK Bribery Act
Focuses on corruption of foreign
Governmental and political
officials
Corruption of foreign officials Also covers non-governmental
officials ie, private to private
bribery
Criminalises payments to
foreign public officials that are
made corruptly
None Does not require that payments
be made corruptly
Does not prohibit requesting or
receiving or accepting bribes
Payment of bribes Criminalises requesting/
receiving or accepting bribes
Facilitation payments
allowed (to facilitate routine
Governmental actions)
Certain facilitation payments
prohibited
No facilitation payments
allowed
FCPA has no strict liability
offence
Controlling mind required for
some offences
Strict liability of a corporate for
failure to prevent bribery and
senior officer offence
Five-year criminal penalty per
offence
Criminal penalties 10-year criminal penalty per
offence
Books and records provisions
require accurate accounting
Accounting UK Companies Act 2006 (ss
386 and 387): duty to keep
accounting records
Defence where reasonable and
bona fide expenditure is paid
to demonstrate a product or
perform a contractual obligation
None Only defence is adequate
procedures to corporate offence
96 Norton Rose Group
Anti-corruption laws in Asia Pacific
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Contributing law firms
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New Delhi, 110020
India
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Fax +91 11 2692 4900
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Fax +886 2 2764 2448

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