Archive for the ‘Guest Posts’ Category

Spain Becomes The Latest Country To Adopt A Compliance Defense

Tuesday, April 14th, 2015

SpainThe article “Revisiting a Foreign Corrupt Practices Act Compliance Defense” highlights, among other things, that several countries like the United States that are signatories to the Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Convention), have a compliance-like defense in their domestic laws.

The article discussed compliance-like defense concepts in the laws of the following OECD Convention countries: United Kingdom, Australia, Chile, Germany, Hungary, Italy, Japan, Korea, Poland, Portugal, Sweden, and Switzerland.

As noted in the article:

“That additional OECD Convention signatory countries [do not have compliance defense concepts] does not mean that those countries rejected compliance-like defenses relevant to their “FCPA-like” law. Rather, in many OECD Convention countries the concept of legal person criminal liability (as opposed to natural person criminal liability) is non-existent. Further, in many OECD Convention countries that recognize legal person criminal liability, such legal person liability can only result from the actions of high-level personnel or other so-called “controlling minds” of the legal person. If a foreign country does not provide legal person liability, there is no need for a compliance defense, and the rationale for a compliance defense is less compelling if legal exposure of the legal person can only result from the conduct of high-level executive personnel or other “controlling” minds of the legal person.”

“Revisiting a Foreign Corrupt Practices Act Compliance Defense” was published in January 2012 and since then several other OECD Convention countries (and other countries) have adopted or are considering adopting compliance-like defense concepts in their domestic laws.

Prior posts here and here highlighted developments in Singapore and Ireland.

The point is – a compliance-like defense applicable to the offense of bribery of foreign officials is not novel, risky, or dangerous as the DOJ and others have argued.

The latest country to recognize this – and become smart as to enforcement of anti-bribery laws – is Spain.

In this recent post published on Global Compliance News (a news platform moderated by Baker & McKenzie), Brian Whisler and Rafael Jimenez-Gusi write:

“Pursuant to amendments to the Spanish Criminal Code approved on March 26, 2015 by the Spanish Congress and scheduled to take effect on July 1, 2015, a company’s directors are legally obligated to adopt a compliance program and the program must be supervised by a body or individual authorized to exercise high-level control. The amended code provides companies with an exemption from criminal liability for crimes committed by their officers or employees, provided the company meets certain requirements set forth under the new law. Specifically, Article 33 of the amended code exempts companies from criminal liability under the following conditions:

  1. the directors have adopted a compliance program that meets the legal requirements under Spanish law,
  2. the supervision of the program is entrusted to a company´s body or individual with authorized powers of initiative and control (Compliance Body),
  3. the officers or the employees have committed a crime by intentionally violating the compliance program, and
  4. the Compliance Body did not neglect its duties of supervision, oversight and control.

The amended Spanish code also lists six key elements that a compliance program must include in order to insulate a company from criminal liability (provided that the compliance program has been adopted before a crime was committed by any of its officers or employees). These six elements, as enumerated in Article 33 bis 5, are:

  1. Risk assessment,
  2. Standards and controls to mitigate any criminal risks detected,
  3. Financial controls to prevent the crimes,
  4. Obligation to report to the Compliance Body any violations of the standards and controls (a whistleblowing channel),
  5. Disciplinary system to sanction violations of the compliance program by officers and employees, and
  6. Periodic review of the compliance program, making the necessary adjustments when serious violations occur or when the company undergoes organizational, structural or economic changes.

Since the amended code requires an effective compliance program, companies will also need to demonstrate that their officers and employees have received proper training.

Prior to this development, in 2010, Spanish legislation introduced corporate liability for a number of crimes, including corruption. Directors could be held criminally liable if a crime was committed that could have been avoided. However, that legislation did not address the consideration a judge could give to a company’s compliance program. The 2015 Spanish legislation now places great weight on effective compliance programs, following the global trend toward mandating compliance programs reflecting core elements for such programs.

Additionally, much like in the U.K., the recent Spanish legislation is designed to provide an affirmative compliance defense for companies that can demonstrate the six elements of an effective compliance program described in the new law.”

Fighting Foreign Corrupt Practices – How Current DOJ and SEC Revenue Generation is Unproductive

Thursday, March 12th, 2015

meaninglessToday’s post is from Peter Manda. Manda is a former international in-house counsel and has worked on a variety of international in-house investigations and FCPA matters.

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In the early days of FCPA enforcement, courts and the DOJ alike made every effort to ascertain the source of the violation and to deal with that violation on the local level.  Prosecutions were limited to local employees; and fines and penalties on issuers were limited in scope.

Over time, as issuers were found to have intentionally and knowingly violated the FCPA, disgorgement of profits and high fines and penalties became more common. Nevertheless, collected fines and penalties (while volatile) increased (at most) at an average rate of $100M a year. This all changed in 2012 with the adoption by the SEC and DOJ of the FCPA Guidelines which purport to outline the compliance steps that must be undertaken in order to prevent an FCPA violation or to reduce or mitigate potential fines and penalties through voluntary disclosure and cooperation.

In describing liability for acts conducted in or by subsidiaries, the Guide articulates a strict liability respondeat superior standard that compels issuers to disgorge any revenue that is arguably derived from an alleged violation. The results have sent shock waves through the international business community. Fines and penalties collected have increased at a clip pace of $500M a year. Issuers now face the difficult choice of voluntarily reporting and potentially paying impressively high fines or hedging a bet that the SEC or DOJ won’t find the violation for a while and then paying a lesser fine by cooperating in the investigation. Worse, it is pretty clear from recent official statements that the SEC and DOJ assume issuers are companies that go out into the world with the intent of breaking all the rules, paying bribes, and being corrupt.

Yet, a review of recent FCPA enforcement actions does not show how bad US issuers are. Rather, they often point to local employees in far-distant countries committing FCPA violations — violations that are often only apparent in hindsight after the controls implemented by the issuer detect the wrong-doing. In most cases, those employees are individuals who operate culturally under different assumptions and who don’t seem to have received the memo that US companies don’t tolerate bribery and corrupt practices. This is especially the case where an issuer acquires a foreign company and then finds that employees in the acquired company had been engaging in corrupt practices.

The outcry from issuers and from those who think about the FCPA and its scope is justified. In effect the government has converted what should be an anti-corruption measure into a revenue generating measure. By having widened the standards to allow prosecutors to coerce settlements that disgorge from the consolidated global earnings of issuers, the DOJ and SEC have opened the revenue stream pipeline and the money is flowing at a clip pace of $500M a year. Naturally there is pushback from this overreach, pushback that has included Congressional hearings. The negative result of this pushback could be a watering down of the effort to fight corruption abroad. Not only would that be unfortunate, it would violate OECD objectives and commitments.

In an article I wrote – recently published by the International In-House Counsel Journal - I suggest that the DOJ and SEC should adopt an intermediate standard that allows for limitation of liability (including fines and penalties) to the foreign subsidiary (that is, no disgorgement of consolidated global earnings) where (a) the issuer parent voluntarily discloses immediately upon the discovery of a violation, (b) the issuer parent’s compliance controls are effective and were the reason for the discovery, and (c) the violations were engaged in by employees or agents who knew of the issuer’s commitment to FCPA compliance but chose to ignore them regardless; or (d) where an issuer acquires a foreign subsidiary and finds a violation after the fact despite due diligence conducted according to generally accepted auditing principles.

I believe the result of adopting an intermediate standard would encourage more cooperation between the government and issuers. An intermediate standard would make issuers allies with the DOJ and SEC in the fight against corruption — rather than adversaries fighting a calculus of revenue generation and earnings reduction. Equally important, by focusing on the subsidiary rather than the parent issuer, the DOJ and SEC could engage the issuer to interact with local authorities to prosecute the violators and to implement effective informational campaigns that could have a wider, more permanent, effect in the fight against corruption. Disgorgement of consolidated earnings punishes the parent issuer, it does nothing to help reduce foreign corrupt practices. It’s time the SEC and DOJ turned their attention from generating revenue from issuers to making them allies in the fight against foreign corrupt practices.

Navigating The ‘Gift, Entertainment And Hospitality’ Landscape In India

Thursday, February 19th, 2015

IndiaSherbir Panag (MZM Legal Advocates & Legal Consultants in Mumbai, India). Panag is the India Expert for FCPA Professor.

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FCPA enforcement actions in 2014 have seen companies such as HP Poland, Bruker and Avon (in part) face heat as a result of alleged bribes being paid under the alleged guise of gifts and corporate hospitality.

The risk for multinational companies operating in countries with engrained ‘gift giving’ and ‘hospitality extending / accepting’ cultures is thus a real compliance concern. India happens to be one such country where its cultural and ethnic diversity, multitude of festivals and high levels of public corruption, make the already complex compliance task all the more challenging.

In the ‘Resource Guide to the U.S. Foreign Corrupt Practices Act’ the DOJ and SEC recognize that a small gift is often an appropriate way for business people to display respect for each other. It further goes on to lay down some hallmarks of appropriate gift giving as “when the gift is given openly and transparently, properly recorded in the giver’s books and records, provided only to reflect esteem or gratitude, and permitted under local law.”

The focus of this post will be to help facilitate a better understanding of what gifts, entertainment and hospitality to public servants is permitted under Indian law.

Background:

India’s principal anti corruption legislation – the Prevention of Corruption Act, 1988 (PCA) recognizes that bribes paid to public servants are not limited to pecuniary gratifications or to gratifications estimable in monetary terms. This is further emboldened by the use of the term ‘any gratification whatever, other than legal remuneration’ in the substantive text of the bribery provisions. The gratification would be deemed to be illegal or a bribe if it is paid/given with the intention to:

  • motivate, influence or reward the public servant to perform or forbear performance of an official act;
  • show favour or disfavour to any persons;
  • render or attempting to render any service or disservice to a public servant.

Therefore, gifts given or hospitality extended to public servants beyond the threshold limits or in improper circumstances that are likely to influence the public servant, would be deemed as a bribe under Indian law.

Who is a Public Servant?

Section 2(c) of the PCA provides the definition of who would be deemed to be a public servant. The definition is extremely broad and includes among others government officials, local authorities, judicial officers, any holder of office to perform a public duty and employees of government owned or government controlled entities. Broadly speaking state control and financing is a reasonable test to determine whether an individual would be a public servant or not.

 What Gifts Can be Given and Hospitality Extended to a Public Servant?

Every public servant is governed by the conduct rules / code of conduct of his or her service or organisation. For example, the ‘All India Services (Conduct) Rules, 1968’ would cover services such as the Indian Administrative Services and the Indian Police Service, the state owned Oil and Natural Gas Corporation (ONGC) has the ‘ONGC Conduct, Discipline and Appeal Rules, 1994 (Amended 2011)’, Ministers of both the Union and States are governed by the ‘Code of Conduct for Minsters’ so on and so forth. These Conduct Rules establish the threshold limits on the value of gifts and hospitality that can be accepted by the concerned class of public servant and the circumstances thereof.

While the threshold value varies among the different services and organisation based on the class and seniority of the public servant, few standard aspects are prevalent:[1]

  • Public servants shall not accept nor have any member of his / her family or person acting on his/her behalf accept any gift for him / her.
  • Gifts shall include free transport, boarding, lodging or other service or any other pecuniary advantage when provided by any person other than a near relative or personal friend having no official dealings with the Government servant.
  • Gifts of the specified value may be accepted by public servants from his / her near relatives or personal friends having no official dealing with him/her when the same is in conformity with prevailing religious and social practices.
  • Public servants shall not accept any gifts from any foreign firm which is either contracting with the Government of India or is one with which the public servant had, has or is likely to have official dealings.
  • Generally a casual meal, lift or other social hospitality shall not be deemed to be a gift.
  • Public servants are to avoid accepting lavish hospitality or frequent hospitality from any individual or commercial organisation that have official dealings with him /her.
  • It is imperative to read the conduct rules / code of conduct alongside the applicable provisions and objectives of the PCA.

Best Practices That Corporations Should Bear in Mind While Framing Their ‘Gift, Entertainment and Hospitality’ Policies in India:

As noted above specific threshold limits as specified in the public servants code of conduct / conduct rules are applicable to them. Therefore, a ‘Gift, Entertainment and Hospitality’ policy must cater to these specificities and variations by keeping the following best practices in mind:

  • Companies should maintain a database of up to date and official conduct rules / code of conducts of the public servants it regularly interacts with.
  • Employees of the company should be adequately briefed on the legal need to carefully evaluate the specific gift, entertainment and hospitality provisions and corresponding threshold value of each class of public servant before giving a gift or extending hospitality to them.
  • Threshold values in the company policy must ideally be mentioned in Indian Rupees in order to ensure clarity and prevent any misunderstanding / misconduct that may inadvertently occur due to fluctuating foreign exchange rates.
  • Business courtesies should be accurately documented and reported in the company’s books and records.

[1] This list is merely indicative and is not exhaustive, nor applicable to all conduct rules / code of conduct. Items included in the list are subject to the exceptions, explanations, exclusions, modifications and additions as narrated in the respective conduct rules / code of conduct.

This post is purely informative and does not constitute legal advisory and should not be construed as such

Year End Review Of Anti-Corruption Law North Of The 49th Parallel

Monday, January 19th, 2015

CanadaA guest post  from Mark Morrison (Blake, Cassels & Graydon), the Canada Expert for FCPA Professor, and Blakes attorneys Michael Dixon and James Reid.

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This past year has been one of mixed results for Canadian authorities under Canada’s Corruption of Foreign Public Officials Act (CFPOA), Canada’s equivalent to the FCPA. On the one hand, Canada increased its rating on Transparency International’s well known Exporting Corruption: Progress Report 2014: Assessing Enforcement of the OECD Convention on Combating Foreign Bribery to a “Moderate Enforcement” rating from 2013’s classification of  a “Limited Enforcement” rating. In addition, 2014 saw precedent setting court decisions and sentencing of individuals.

Despite these developments, it has now been two full years since the last penalty was imposed on a corporate defendant under the CFPOA, that being Griffith’s Energy who was sentenced to a $10.35 million dollar fine in January 2013.  The lack of proceedings against corporations in 2014 may be reflective of the considerable resources being dedicated by the Royal Canadian Mounted Police (RCMP) to the ongoing, high profile investigation of Canada’s largest construction and engineering company, the resolution of which is widely anticipated to make headlines in 2015.  This post discusses some of the developments in Canada’s anti-corruption efforts in 2014 and what can be expected in the year ahead.

Enforcement Proceedings

In 2014, Canadian authorities appear to have focused their attention on pursuing individuals who had violated the provisions of the CFPOA. Noteworthy for corporate officers, 2014 marked the first jail sentence for an individual, and several other individuals are being pursued by authorities in Canada. Notable enforcement proceedings are discussed below.

Karigar – On May 23, 2014, Nazir Karigar was sentenced to three years in prison for offering to bribe foreign officials.  This sentence was the most significant development in Canadian anti-corruption enforcement proceedings in 2014, as it marks the first time a jail term has been handed out to an individual convicted under the CFPOA. This case will likely stand as a precedent for sentencing in future corruption cases.

Karigar was convicted on August 15, 2013.  The case concerned an agreement to pay approximately US $450,000 in cash as well as certain shares to Air India officials and the Indian Minister of Civil Aviation to secure a contract.  At the time, Karigar was acting for Cryptometrics Canada.  Karigar was convicted despite Cryptometrics not being awarded the contract or there being any evidence the bribe was actually offered or paid to Indian officials, as the internal agreement amongst Karigar and Cryptometrics management to offer a bribe was held to be an offence.

In sentencing, Justice Hackland of the Ontario Superior Court took Karigar’s age (67) and other circumstances into account as mitigating factors.  However, the bribery scheme was viewed as a serious crime.  Accordingly, principles of denunciation and deterrence were placed at the forefront in administering the three year sentence.

It is also important to note, that at the time Karigar was charged, the maximum prison sentence for a CFPOA violation was only five years. Since then, the 2013 amendments to the CFPOA raised the maximum penalty from five years to 14 years.

Chowdhury – Five individuals were jointly charged with bribing a foreign public official to obtain a contract to provide consulting services for building the World Bank funded Padma Bridge Project in Bangladesh.  One of the individuals charged, Abdul Hasan Chowdhury, was a Bangladeshi citizen and resident who had never been to Canada.  On this basis, and without submitting to the jurisdiction of the Canadian Court, Chowdhury applied to prohibit the Crown from proceeding in Canada with the charge against him under the CFPOA.

Ultimately, the Court found that Canada did have jurisdiction over the offence since many of the acts making up the offence took place in Canada, the investigation was conducted in Canada and the bulk of the evidence was gathered in Canada. However, Justice Nordheimer held that the CFPOA does not give the Court jurisdiction over foreign nationals who do not reside, or are not otherwise present (such as through extradition or otherwise) in Canada.  The Court held that the mere fact Chowdhury was a party to the offence was not sufficient to give the Canadian courts personal jurisdiction over him unless he either physically came to Canada or Bangladesh offers to surrender him to Canada. Notably, Canada does not have an extradition treaty in place with Bangladesh.  In result, the charges against Chowdhury were stayed.

The allegations in question in this case pre-dated the 2013 amendments to the CFPOA which expanded the jurisdictional reach of the CFPOA from territoriality to nationality based jurisdiction.  Notwithstanding this expanded jurisdictional scope of the CFPOA, however, the key point to be taken from this case is that a Canadian court needs to have jurisdiction over both the offence and the person before it may exert jurisdiction.

Ongoing Cryptometrics Investigations – Following the Karigar sentencing in May, on June 4, 2014, the RCMP charged US nationals Robert Barra (former Cryptometrics CEO) and Dario Berini (former Cryptometrics COO) for bribery offences under CFPOA.  UK national Shailesh Govindia, an agent for Cryptometrics, has also been charged with bribery under CFPOA and with one count of fraud contrary to the Criminal Code of Canada.  Canada-wide warrants have been issued for all three accused.  These charges go to show that Canadian authorities will continue to pursue enforcement proceedings, even against foreign nationals, despite being unsuccessful in the Chowdhury case discussed above.  One key difference between these charges and Chowdhury, however, is that Canada does have extradition treaties in place with the US and UK, creating a potential avenue by which Canadian authorities could assume personal jurisdiction over these individuals.

Ongoing Investigations – The most significant Canadian anti-corruption enforcement action is the ongoing, high profile corruption investigation relating to allegations that Canada’s largest construction and engineering company (the Company) bribed foreign public officials to secure contracts in a number of foreign countries, including Libya, Bangladesh and Algeria (the Engineering Investigation).  Canadian authorities have been carrying out the Engineering Investigation since 2011 with the cooperation of others, including the World Bank and Swiss authorities.  It is reported that the Company is providing its full cooperation with authorities.

To date, at least three former executives of the Company and two others connected with the Padma Bridge Project in Bangladesh have been charged under the CFPOA and are awaiting trial. On the domestic front, the Company has also faced corruption allegations related to the construction of a $1.3 billion hospital in Montreal, regarding which several former executives are facing charges, including, fraud, conspiracy and breach of trust.

The allegations currently subject to the Engineering Investigation are the most serious to involve a Canadian company to date and onlookers are intently watching what will unravel in 2015, when it is expected that a resolution of this high profile case will likely occur.

New Legislation and Government Policy

Extractive Sector Transparency Measures Act – In October 2014, the Canadian Government introduced the Extractive Sector Transparency Measures Act (ESTMA) which will create mandatory public reporting of payments to governments and government officials by the extractive sector.  The reporting obligations in ESTMA will apply to companies that are engaged in the commercial development of oil, gas or minerals in Canada or abroad and are either listed on a stock exchange in Canada or have a place of business in Canada, do business in Canada or have assets in Canada, and meet certain size thresholds.

ESTMA, which is expected to come into force in the spring of 2015,  is designed to further Canada’s fight against corruption by enacting reporting obligations with respect to payments made to foreign and domestic governments (and government officials), and will eventually include aboriginal governments.  These proposed mandatory reporting requirements are in line with other countries implementing similar requirements, including the European Union and the United States.

Amendments to the Federal Government Integrity Provisions – In March 2014, the Federal Government announced it had made significant changes to its Integrity Provisions, which are incorporated in all solicitations administered by Public Works and Government Services Canada (PWGSC).  PWGSC handles the majority of Federal Government procurement transactions.  By adding a requirement that bidders certify that neither the bidder, nor any of the bidder’s affiliates, has been convicted of (or received an absolute or conditional discharge) under any foreign offense that PWGSC regards as having “similar constitutive elements” to listed Canadian offenses (including fraud, money laundering and bribing a foreign public official), the new Integrity Provisions establish rules for debarring corporations and individuals where they or their affiliates have committed an integrity offence.

The integrity provisions impose rigorous certification provisions, which, if not complied with can result in significant consequences including debarment from participating in Government procurements for 10 years from the date of conviction and the right for the Government to terminate a contract for default.  The Canadian Government also maintains the right to pursue other remedies available, including the ability to sue for damages that may occur as a result of termination.

Conclusion

The introduction of ESTMA and the new Integrity Provisions continue the trend towards a stronger legislative commitment to anti-corruption enforcement in Canada, which began with the 2013 amendments that strengthened the CFPOA.  Given this clear legislative direction and the likely freeing up of enforcement resources, expected after the imminent resolution of the Engineering Investigation, our forecast is that 2015 will be an active year for Canadian anti-corruption enforcement.

Checking In Down Under

Tuesday, December 30th, 2014

AustraliaToday’s post is from Robert Wyld (Partner, Johnson Winter & Slattery – here).  Wyld is the Australia Expert for FCPA Professor.

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The key issues that are covered in this post include: (i) Australia’s anti-corruption ranking slips down; (ii) The G20 Anti-Corruption Implementation Plan 2015-2016; (iii) Australia’s Attorney General Department’s Foreign Bribery website module; (iv) Australia and ASIC corporate penalties; (v) Australia and China – Operation Fox Hunt – chasing Chinese economic fugitives; (vi) Australia and extractive industry transparency; and (vii) Asia-Pacific Corruption Network.

Australia’s Anti-Corruption Raking Slips Down

On 3 December 2014, Transparency International released its well-known Corruption Perception Index for 2014. Australia slipped out of the top 10 “clean countries” and now sits at No 11 in the ranking of 174 countries.

Prof AJ Brown, a director of Transparency International Australia made the following comments to illustrate why Australia has slipped down the rankings, despite the progress made in leading the G20 to a new Anti-Corruption Implementation Plan (see below):

  • accumulating corruption scandals;
  • a heightened concern as to whether scandals reported in the media and investigated by authorities actually result in any prosecutions;
  • an increasing public perception that Governments do not do enough to seriously target the “big end of town” with the refusal within the Reserve Bank of Australia to admit any problem (with the Securency banknote printing scandal or to independently investigate the conduct of the relevant companies and their Boards of Directors) is just one example; and
  • the consistent reluctance of the Australian Government to acknowledge that corruption is a national problem and failing to even acknowledge that a robust, properly resourced independent national anti-corruption body has a role to play.

It appears that this reluctance to see corruption as a systemic national and international problem in Australia afflicts both the left and right side of politics. In an era of cost cutting, blow-out fiscal budgets and razor gangs cutting swaths through the public sector, business calling for less regulation, it so often just seems too hard for politicians to address. This is unfortunate given the excellent progress Australia demonstrated in leading the G20 to target foreign bribery – now the challenge is to address initiatives focusing on both domestic and foreign bribery with equal zeal and live up to the G20 ideals, failing which the perception of Australia’s anti-corruption efforts is likely to continue to fall, which reflects poorly on us all.

G20 Anti-Corruption Implementation Plan 2015-2016

After the breathless excitement of the G20 meetings in Brisbane in November 2014, the G20 published their collective Anti-Corruption Implementation Plan 2015-2016 (the G20 AC Plan).

The G20 AC Plan identifies key action areas and then for each Action Area, a set of Deliverables over the 2 years of the Plan.  The key Action Areas with their identified Deliverables are as follows:

  • member countries are to identify concrete steps to require the disclosure of ultimate beneficial owners behind any commercial or other structure to promote transparency in all commercial dealings;
  • member countries must promote their own rules on improving transparency in the public sector, including open data, whistleblower protections, immunities from prosecutions, fiscal and budget transparency and standards for public officials, with the Deliverables ranging from practical toolkits, disclosure of assets by public officials to self-assessments of each Members’ compliance with the Plan;
  • to actively promote the criminalisation of foreign bribery and the legal liability of persons (companies and individuals) with a key Deliverable being to focus on the role of intermediaries;
  • improving all levels of government cooperation with a Deliverable focus on acting to identify, recover and return the proceeds of corruption to the victims, countries or entities with enhanced criminal, civil and administrative sanctions and the improved use of anti-money laundering processes;
  • targeting anti-corruption initiatives in high risk areas with a Deliverable focus on customs, extractive industries, fisheries and primary industries and the construction industry; and
  • working to improve private sector transparency and integrity, particularly for small business, incentives for self-reporting, the role of the financial sector in detecting suspicious transactions and for business to adopt robust ethical standards to combat corruption.

The challenge over the next 2 years will be for the G20 member and other countries to take real and meaningful steps to address these issues in the face of inevitable complaints from business about the costs of regulation and compliance, so that these costs and attitudes are seen to work towards sustainable economic growth.

Australia’s Attorney General Department’s Foreign Bribery Module

On 9 December 2014 (world Anti-Corruption Day), the Australian Minister of Justice launched a new inter-active module addressing Australia’s key foreign bribery laws, sanctions, international issues and how business should manage its foreign bribery risks.

The Minister said:

The Australian Government has a zero tolerance approach to foreign bribery and corruption. This type of criminal offence poses a significant risk to Australian businesses operating in overseas markets. There are serious criminal implications for individuals and corporations, both under Australian and foreign laws. Business needs to be aware of the risks and take action to minimise them. The online learning module provides advice on Australia’s anti-bribery policy, the relevant laws and how they apply, and steps that business can take to help promote compliance. It also assists with our whole-of-government programme on foreign bribery and ensures our awareness-raising efforts are efficient, cost-effective and consistent across Government. Australia is reporting to the Organisation for Economic Co-operation Working Group on Bribery later this week on initiatives undertaken since their evaluation of Australia in 2012. The online learning module helps address recommendations to continue to educate and engage with the business community.

The module is available here and companies should consider incorporating the ideas from the module into their existing e-learning or other training modules.

Australia and ASIC Corporate Penalties

Over the last few months, the question of the adequacy of corporate penalties for commercial offences has been bubbling along. In light of various scandals involving banks, their financial planning businesses and other ventures where average investors invested lot and lost a lot more, the ability of ASIC to really prosecute individuals, remains a live debate. Many see ASIC as too weak and too beholden to large companies that generate the fees ASIC collects for the Australian Government.

In the wake of the various Libor-related investigations and prosecutions oversea, ASIC’s Chairman was recently quoted in The Sydney Morning Herald (on 2 December 2014) as saying:

“Tougher penalties, such as more jail sentences, would deter would-be white collar criminals…fear had to be lifted in others to ‘smother the greed’…white collar criminals are scared of going to jail. I had 10 years on Wall Street and going to jail is the thing that scares them most…when they come up to the 18th floor and they put people in handcuffs and wheel them off they don’t come back – it sends a message.”

Yet, despite this bravado, little is seen of any aggressive pursuit of economic criminals in the manner described by ASIC. Hyperbole is all good and well, but without demonstrable action to back up the emotive statements, ASIC appears to many to be little more than a regulator with an angry feather duster.

Australia and China, Operation Fox Hunt

Since July 2014, there has been a range of media coverage on Operation Fox Hunt, a joint initiative between Australian and Chinese investigators and police forces (in China and overseas), targeting corrupt Chinese officials who are purportedly investing corruptly secured assets in Australia.

The media has reported that China has arrested 288 suspects accused of financial crimes across 56 countries as part of its sweeping Operation Fox Hunt. The Chinese Ministry of Public Security said 126 of those suspects were brought back to China and confessed to their crimes. Some of them were apprehended in the US, Canada, and Australia, which have become popular with white-collar criminals because they do not have extradition treaties with China.

The Chinese government declared a deadline of 1 December 2014 for suspects to come forth and surrender to authorities, which could get them more lenient punishments. The operation has required Chinese authorities to co-operate with law enforcement in each of the countries where fugitives reside. While details are scarce, Chinese media quotes the Ministry of Public Security thanking countries for “cooperation and support” in the operation.

In Australia, these developments and the free trade negotiations between Australia and China there have fuelled debate about whether an extradition treaty might be negotiated between China and Australia.  While there are significant issues to address, including the substantial differences in the criminal legal system in the two countries and China’s use of capital punishment, a treaty may not be so insurmountable as some might think, given the new era of trade relationships between China and Australia.

As one Chinese commentator, Yang Hengjun noted in October 2014:

“This is why I believe the “fox hunt” is of the most importance, along with continuing to hunt “tigers and flies” domestically. But compared to “tigers” (which make huge targets) and “flies” (who are everywhere and can be easily caught), the “foxes” are quite cunning. Unless I’m mistaken, the Ministry of Public Security’s “Fox Hunt 2014” has had only limited success. Otherwise, why would the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Foreign Affairs jointly issue a notice urging overseas “economic criminals” to turn themselves in.”

Australia and Extractive Industry Transparency

The recent Corporations Amendment (Publish What You Pay) Bill 2014 (Cth) is Australia’s response to improving transparency in the extractive industries sector, following the US, the UK and Canada introducing mandatory reporting of what in fact is paid by companies to secure valuable business contracts.

Key features of the Bill to note include the following:

  • a mandatory reporting regime for all Australia Stock Exchange listed companies, unlisted public companies, large proprietary limited companies and controlled joint venture companies, involved in a resource extraction activity;
  • a report must be made of any payment, or series of payments of more than AU$100,000 made to a domestic or foreign government (including any authority or company owned by the government);
  • the “reportable payments” are defined broadly to capture such payments as taxes, royalties, licence fees, dividends and “social payments” (to or for community projects);
    • an annual report must be lodged with ASIC making the report publicly available 28 days after receipt by ASIC of the report; and
    • any contravention of the reporting obligations will give rise to an offence under Chapter 2M of the Corporations Act 2001 (Cth) and civil penalties will be available to ASIC if a defaulting company is prosecuted.

The Bill reflects Australia’s commitment to enhancing transparency following the G20 meetings and the increasing focus on how and what type of payments are made to governments and agencies controlled by governments in order to help target and combat corruption. Australian extractive companies should ensure there procedures are reviewed to ensure compliance with the Bill once it is enacted.

Asia-Pacific Anti-Corruption Network

At the 2014 APEC leaders’ meeting in Beijing held in November 2014, APEC agreed to establish an informal structure to facilitate “information sharing” among anti-corruption and law enforcement authorities in the Asia-Pacific region.

It commits the 21 APEC countries, including the United States and China, to “deny safe haven to those engaged in corruption, including through extradition, mutual legal assistance and the recovery and return of proceeds of corruption,” a joint-statement from APEC members said.

Western governments have resisted making extradition deals with China in the past because corruption crimes there are often punished with the death penalty. China has extradition treaties with 38 countries, but not with the United States, Australia or Canada, which have “the highest concentrations of corrupt officials” using those countries to safeguard their illicit assets according to Wang Yukai, an anti-corruption expert at the Chinese Academy of Governance. Mr Yukai also said that:

It will be of great significance if China can build cooperative mechanisms with these countries to capture corrupt officials on the run and recover some economic losses.

The Terms of Reference, adopted at the November APEC meeting require APEC Member States to:

  • establish the ACT-NET as an informal regional anti-corruption platform to permit prosecutors to consult and share practices to improve their investigation and prosecution of corruption (with China as the initial host for 2014 and 2015);
  • help in the training and targeting of corrupt assets to secure their capture and return; and
  • to promote bilateral and multilateral cooperation.