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CMS Guide to Anti-Bribery and Corruption Laws

01/07/2013

About the CMS Guide to Anti-Bribery and Corruption Laws 2013

This is the third edition of the CMS Guide to Anti-Bribery and Corruption Laws, fully updated and expanded to cover 26 countries, including the BRIC nations.

The global anti-corruption landscape has seen major changes since we published the last edition in summer 2011. Some jurisdictions have completely overhauled their laws. Many have strengthened and extended the reach of their regimes, for example by making legal entities as well as individuals liable for corruption offences and by introducing stiffer penalties for financial crime.

For each of the 26 countries, the guide answers the following key questions:

  • What are the key offences?
  • Who can be liable and when?
  • What are the penalties?
  • What are the defences?

Key points of note:

  • Corporate liability – the Czech Republic has strengthened its laws to make legal entities liable for corruption offences. Brazil remains one of the few countries where organisations cannot be directly liable for corruption offences, but proposed new laws would introduce corporate liability and the possibility of fines up to 30% of turnover.
  • International convergence – there remains no international anti-corruption law or standard. However, an increasing number of countries are signing up to international conventions such as the 1997 OECD Convention on Combating Bribery of Foreign Public Officials in Business Transactions, and the 2003 UN Convention Against Corruption. Countries are moving towards a consensus on what conduct is criminalised, if not on how it is criminalised.
  • Scope of laws – all of the countries outlaw public sector corruption. Only two (India and Bosnia & Herzegovina) do not criminalise private sector bribery.
  • Liability for public sector corruption – there is no universal agreement on whose conduct is criminalised. In some countries only the public official can be prosecuted, in others it is the “briber”, and in others both.
  • International jurisdiction - most nations exercise jurisdiction beyond their borders, with 21 of the 26 holding individuals resident in their jurisdiction liable for corrupt acts committed in other states. More than half of the countries covered in the Guide allow for the prosecution of local organisations whose foreign subsidiaries commit bribery offences. Companies doing business in any of the 26 countries should take note.
  • Stronger laws on financial crime – where countries have made changes, they have increased the scope of applicable laws and introduced stiffer penalties for wrongdoing. In Switzerland the maximum penalty for individuals committing private sector bribery has risen ten-fold to more than CHF 1 million; in Austria it has more than doubled for some offences.
  • Anti-corruption procedures – organisations in the UK and Italy can benefit from a “defence” based on having adequate anti-corruption procedures in place. Corporate entities in Portugal can avoid liability if they can show their employees acted against express instructions. Russia has made the introduction of anti-bribery procedures mandatory for companies, a similar approach to that of the US.

Omar Qureshi, Head of Anti-corruption, CMS UK, comments, “Anti-bribery and corruption continues to be an increasing focus for legislators and prosecutors around the world. There is a growing consensus on what types of conduct are criminalised, but there remain significant differences between countries in how the laws are applied and against whom. Given the widening scope of these laws and the penalties that can apply, it is more important than ever for businesses to be aware of the heightened risks these changes entail.”

Countries covered in the guide: Albania, Austria, Belguim, Bosnia and Herzegovina, Brazil, Bulgaria, China, Croatia, Czech Republic, France, Germany, Hungary, India, Italy, The Netherlands, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Switzerland, Ukraine, United Kingdom.

For more information about the CMS Guide to Anti-Bribery and Corruption Laws 2013, please visit our website at www.cmslegal.com or contact emilio.battaglia@cms-aacs.com, laura.opilio@cms-aacs.com.

 

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CMS Guide to Anti-Bribery and Corruption Laws
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Authors

Portrait ofEmilio Battaglia
Emilio Battaglia
Partner
Rome
Portrait ofLaura Opilio
Laura Opilio
Partner
Rome