Structured Settlements for Corruption Offences Towards Global Standards
In 2016, the Structured Criminal Settlements Subcommittee (SCSS) of the IBA Anti-Corruption Committee commenced a two-year project entitled, ‘Towards Global Standards in Structured Settlements for Corruption Offences.’ The objective of this project was to map the evolving settlement practices for corruption cases of countries across the globe. The project hopes to add to the growing discussion on whether, and to what extent, there is a need for global standards.
First French-style DPAs herald new era of French anti-corruption prosecution
Until recently, the French regulator did not have the same procedural tools as its British or American counterparts to set up deferred prosecution agreements. This had been a long-standing cause of criticism from the OECD and the US, increased by French prosecutors’ difficulty in ensuring convictions against legal entities and individuals in corruption-related cases.
Agence Française Anti-corruption: a new French agency to fight corruption
By enacting the Sapin II Act, France demonstrated its commitment to strengthen the national anti-corruption framework and enforcement powers. One of the key features of this new piece of legislation was the creation of a French Anticorruption Agency. By granting it a wide range of prerogatives, the AFA has appeared as one of the essence of Sapin II.
An update on key developments in Italy
In 2017, Transparency International ranked Italy 54th out of 180 countries in its Corruption Perceptions Index. This improved ranking is symptomatic of a broader trend within Italy; a trend towards a cleaner, more legitimate, political infrastructure, the focal point of which is the National Anti-Corruption Authority. Headed by President Raffaele Cantone, ANAC was established in 2014 by the Italian Anti-Corruption Law. It is a public independent body that combines the roles of public procurement policy supervisor and anti-corruption enforcer.
Deferred prosecution agreements: improving corporate compliance in Canada
With the growing sophistication and globalization of corporations, countries are increasingly looking for new methods to combat and prosecute corporate crime. Deferred prosecution agreements, or DPAs, are quickly becoming a popular method through which countries can hold corporations accountable for their actions.
Mid-year FCPA enforcement update
Enforcement of the US Foreign Corrupt Practices Act was relatively consistent during the first half of 2018, with three individual enforcement actions and twelve corporate enforcement actions announced during the period. The DOJ also enacted important policy changes at the end of 2017 and in May 2018. It remains an open question whether the level of enforcement announcements truly reflects a particular posture by the DOJ and SEC, with some statistics suggesting a more nuanced picture.
From the Co-Chairs, June 2018
A message from the Co-Chairs of the Anti-Corruption Committee, Bruno Cova and Leah Ambler.
First contested prosecution under Section 7 Bribery Act 2010
On 21 February 2018, Skansen Interiors Limited was convicted under Section 7 of the Bribery Act 2010 for failing to prevent bribery by its former managing director, Stephen Banks. Previous Section 7 offences have been dealt with either through a deferred prosecution agreement or a conviction following a guilty plea. The Skansen case raises a number of important legal and practical issues which are examined in this article.
Explaining the unexplained
The government has heralded UWOs as a means of making the UK a more hostile place for those seeking to move, hide or use the proceeds of crime and corruption or to evade sanctions. They are seen as a solution in circumstances where it is not possible to rely on full cooperation from other jurisdictions to obtain sufficient evidence to invoke other mechanisms already available. This article examines the key provisions and identifies concerns and areas for possible challenge.
France's increasing power over multiple jurisdiction prosecutions in corruption cases
France is building a stronger legal framework, putting forward new tools to efficiently tackle corruption and compete with foreign legislations. The US still has a strong grip over prosecution of corruption-related misconducts and France needs to enhance its efforts and join forces with the US to ensure better enforcement in the fight against corruption and provide legal protection to defendants against multiple prosecutions.
An update on corruption reform in Italy
In recent years Italy has embarked on a path of structural reforms in relation to bribery. This has been encouraged by many different stakeholders, including the European Union, supranational bodies (including the OECD conventions which require continuous monitoring by an internationally-recognised observer) and public opinion. Although perhaps not as effective as they could have been, Italy's legislative measures have already yielded some positive results.
On the potential effects of cryptocurrency on anti-corruption
In a world becoming more digital, it should be no surprise that currency is following suit. As technology develops and reaches further parts of the globe, so do the payment methods that come with it. Cryptocurrencies, bitcoin being the most well-known, are more popular and used more frequently each day. Cryptocurrencies are not backed by governments or financial institutions, which creates some uncertainty to their reliability and value, as well as their legal status.
Foreign bribery, corruption and commercial crime developments from Australia
On 23 April 2018, the last gasp of the decade-long battle by the Australian Securities and Investments Commission against various Australian Wheat Board executives arising out of the ill-fated UN Oil-For-Food humanitarian programme passed into history with barely a ripple.
New Zealand enforcement on the rise: SFO wins corporate hospitality case appeal, and tackles mortgage lending
This article reviews an appeal of a corporate hospitality case and other fraud and corruption enforcement situations coming to light in the residential mortgage lending markets.
Obedient companies rewarded in new DOJ policy discouraging duplicative penalties
This article highlights the key features of the new policy which aims to discourage 'piling on' duplicative corporate penalties.
From the Co-Chairs
Co-Chairs' message, February 2018.
From the Editor
Newsletter Editor’s note, February 2018
A veil of legitimacy: corruption within state-owned enterprises
Angela Barkhouse comments on experiences of corruption in SOEs.
Converting compliance into commitment: new French anti-corruption law, the Loi Sapin Li
A new revolution has emerged in France, through the Law 2016-1691, which is blowing a wind of change on the French anti-corruption legislative landscape.
A step forward in the fight against corruption: corporate criminal liability is a reality
On 1 December 2017, the Corporate Criminal Liability Law was published in the Official Gazette which sets forth a criminal liability regime for legal entities for the following offences: national or transnational bribery and influence peddling; business dealings incompatible with the exercise of public duties; extortion; unlawful enrichment of public officers; and false accounting. This article examines the main aspects of the law.
Corporate liability for bribery offences in Israel
An examination of the legal framework pursuant to which a corporate entity may face criminal liability in Israel for bribery offences conducted in Israel and abroad by employees of such corporate entity.
Leniency for corruption in Mexico: risks and opportunities
A new law that came into force last July is considered to have the tools needed for state-of-the-art anti-corruption system.
Summary of ‘revolving door’ restrictions in the Arab Middle East
Referring to the movement of individuals between government and private sector employment, this article examines the conflicts of interest in the lack of regulation.
Farewell message from Pascale Dubois
After two years as Co-Chair of the Anti-Corruption Committee we say goodbye to Pascale Dubois.
Submission to Agence Francaise Anticorruption - Dec 2017 (Francais)
Le comité anticorruption de l’International Bar Association (IBA)1 a souhaité soumettre ses propositions à l’Agence Française Anticorruption (AFA) en réponse à la consultation publique ouverte le 5 octobre 2017, relative au projet de recommandations sur la prévention et la détection de la corruption et des manquements au devoir de probité.
Submission on DPAs in Canada - November 2017
Submission to the Canadian Government’s Deferred Prosecution Agreements consultation: Expanding Canada's toolkit to address corporate wrongdoing. Prepared by the IBA Anti-Corruption Committee’s Subcommittee on Structured Criminal Settlements, November 2017
No bribery, no problem? Think again. - Anti-Corruption Committee, February 2016
In November 2015, ICBC Standard Bank entered into the UK's first deferred prosecution agreement (DPA). This is a landmark development; one which has been almost two years in the making (DPAs became available in the UK in February 2014). The DPA also provides the clearest indication yet of how the Serious Fraud Office (SFO) is likely to approach the vexed question of ‘adequate procedures’.
The increasing importance of an anti-corruption compliance programme in Thailand - Anti-Corruption Committee, November 2015
There has long been a view that corruption is an inevitable aspect of doing business in Thailand, in large part due to constant allegations of graft against government officials, coupled with historically weak enforcement by local regulators. However, companies operating in Thailand should be aware of several indicators that this is changing.
From the Co-Chairs - Anti-Corruption Committee newsletter article, June 2015
Welcome to this edition of our newsletter. We extend thanks to all of you who have contributed, and to our editor, Saskia Zandieh. As summer approaches, we look forward to seeing many of you in Paris and again in Vienna in October.
From the Communications Officer - Anti-Corruption Committee newsletter article, June 2015
It is with great pleasure that we bring you this edition of the IBA Anti-Corruption Committee newsletter. This is our first newsletter to appear in a fully e-newsletter format with slightly shorter pieces than you have seen in the past. We are sure you will find the pieces interesting and timely, and we hope you will find that this format provides increased accessibility.
Anti-corruption update: Australia, April 2015 - Anti-Corruption Committee newsletter article, June 2015
This update covers a range of important developments in Australia and overseas in the area of foreign bribery policy, investigations and regulation to 1 April 2015.
Corruption in Sweden – a bad bout of naivety with a bitter cure, Anti-Corruption Committee newsletter article, May, 2015
Though Swedes may not seem particularly prone to corruption at home, they are ill-prepared to deal with corrupt practices abroad. The tools and experiences necessary to combat or even recognize bribery, money laundering and other corrupt practices are astoundingly rare in Sweden. The reason that Swedish companies keep experiencing these problems is because, we believe, that Swedes, generally, suffer from a severe bout of naivety when it comes to corruption and its effects...
Yemeni bribery and anti-corruption laws, and facilitating payments in practice, Anti-Corruption Committee newsletter, May 2015
This article provides an overview of the current legal framework regarding bribery and anti-corruption in Yemen followed by a discussion of the practical implications of the framework with respect to facilitating payments...
Recent FCPA enforcement actions and why businesses should take notice, Anti-Corruption Committee newsletter article, May, 2015
The DOJ and SEC continue to expand their enforcement of the FCPA, and given the Eleventh Circuit's Esquenazi opinion, this current approach is likely to continue in the near future. Businesses are advised to take seriously the DOJ and SEC's aggressive approaches and to pre-empt a potential FCPA investigation by reviewing their compliance procedures. In particular, businesses should take notice of the recent enforcement actions regarding the interpretations of 'anything of value' and 'foreign officials'...
The Clean Company Act and its federal regulation, Anti-Corruption newsletter, May 2015
The Clean Company Act is the practical result of international commitments made by Brazil in combating corruption, notably under the conventions on the matter held by the United Nations, the Organization of American States, and the Organisation for Economic Co-operation and Development. It innovated the national legal scenario by targeting, on a strictly liability basis, all legal entities directly or indirectly involved in illegal acts against national or foreign governmental entities...
Seeing the forest: a holistic approach to compliance assessments, Anti-Corruption newsletter, May 2015
For companies that are seeking resource-effective means of addressing a range of risk areas, expanding the scope of your compliance assessments to cover other key risk areas – such as export controls and sanctions, customs, human rights, and so on – may be the best way to 'see the forest' and better serve our clients...
From the Co-Chairs
Nick Benwell and James Tillen introduce the September 2014 edition of the Newsletter and highlight sessions at the IBA Annual Conference, Tokyo.
From the Communications Officer
Saskia Zandieh highlights articles in the September 2014 edition of the Newsletter and introduces the new online format.
Updates in the Brazilian anti-corruption legal framework and recent enforcement trends - Leopoldo Pagotto
On 30 January 2014, Law No 12,846/13 (the new Anti-Corruption Law) came into force in Brazil, adding new anti-corruption enforcement tools available to the authorities. For instance, new rules on penalties, strict liability, liability for legal entities, third parties, compliance programmes and leniency were introduced, enhancing the ability of enforcement officials to prosecute corruption as well as increasing the costs associated with corrupt practices...
Latest development in anti-corruption enforcement in China - Wenjie Qian
Since 11 July 2013, GlaxoSmithKline (China) Investment Co, LTDhas been investigated by the Chinese Ministry of Public Security. After more than ten months of investigation, the case was brought to the Procuratorate for examination and prosecution on 15 May 2014. As alleged by the MPS, after Mark Reilly was appointed as the General Manager of GSK’s Prescription Division in January 2009, and in order to achieve the high sales growth required by the company’s headquarters and amortise the cost of bribery through drug costs, GSK sold drugs by bribing...
The improving situation: tackling corruption in India - Tushar Ajinkya
The Indian economy is the tenth largest economy in the world by way of nominal GDP and ranks number three in the world in terms of purchasing power parity. While the growth of the Indian economy has slowed down in the last couple of years, with the growing pro-investment and pro-business sentiment surrounding India following its general elections earlier this year, India has never felt such a need for an anti-corruption law suited to business and corporates as it does today...
Corruption: an update on Italy - Francesca Petronio
In its effort to strengthen the fight against the alarming, pervasive and multifarious corruption that plagues Italy – something that again has recently come to the attention of the international media community through the major Expo ad of MOSE scandals in Venice – the Italian government has enacted provisions contained in Decree No 90 of 24 June 2014. The Decree (which is effective immediately but must be converted into law within 60 days of its publication to prevent it expiring ex tunc) introduces measures aimed at reinforcing the role of the National Anti-Corruption Agency...
Japanese consulting company self-reports rebate payments to prosecutors - Kenichi Kinukawa
Historically, Japan has been criticised for a lack of enforcement of its foreign corruption legislation. In December 2011, the Organisation for Economic Co-operation and Development (OECD) published its Phase 3 Report into Japan’s implementation of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions noting that only two cases had been concluded since Japan’s foreign bribery offence entered into force in 1999...
Mexico: Good news in the midst of not so good news? - Roberto Hernández-García
In December 2012, Russia enacted important amendments to the Federal Law, ‘On combating corruption’, which came into force on 1 January 2013. In this article we consider how Russian companies have responded. This law established obligations for all companies in the Russian Federation to have anti-corruption compliance policies and to take measures to prevent corruption...
Obligations of companies under the new anti-corruption law of the Russian Federation - Eduard Ivanov
In December 2012, Russia enacted important amendments to the Federal Law entitled, ‘On combating corruption’, which came into force on 1 January 2013. This law established obligations for all companies in the Russian Federation to have anti-corruption compliance policies and to take measures to prevent corruption...
Corruption in Singapore: an update - Hamidul Haq
Singapore’s anti-corruption agency has been very busy with various investigations and prosecutions. This helps the country consistently maintain a very high ranking in the CPI index. Several recent cases, however, have raised a number of talking points on the issue of corruption in Singapore...
An update on Turkey’s approach to anti-corruption - Elvan Sevi Firat and Ömer Gürbüz
Turkey has been reforming and harmonising its legal infrastructure in order to make the law a more effective deterrent against fraud, bribery and corruption. Recent applications have moved toward harmonisation with international standards regarding foreign anti-corruption and bribery practices, as Turkey continues to gain international repute for being a stable economy with a consistent legal framework...
Deferred Prosecution Agreements: the UK model - David Bridge
Since 24 February 2014, designated prosecutors (currently the Serious Fraud Office (SFO) and the Crown Prosecution Service, but notably not the Financial Conduct Authority) can invite commercial organisations to negotiate a Deferred Prosecution Agreement (DPA) as an alternative to facing prosecution. DPAs are available for economic crimes only, including corruption offences, and can be used in respect of criminal conduct that pre-dates their introduction...
Directors convicted of conspiracy to commit corruption - Alexandra Webster
The introduction of Deferred Prosecution Agreements (DPAs) in the UK and the continuing debate about their use in the US have posed questions about the criminal liability of directors and employees implicated in corporate wrongdoing. In the US, the prominent critic of DPAs, District Judge Rakoff, gave a speech in December 2012 entitled ‘Why have no high level executives been prosecuted in connection with the financial crisis?’, questioning whether enough was being done to hold individuals to account...
US court provides guidance on state-owned businesses and instrumentality under the FCPA - Jian Bin (Ben) Gao
On 16 May 2004, the US 11th Circuit Court of Appeals issued the first appellate-level ruling regarding when a non-US government-owned business can constitute an ‘instrumentality’ of its owning government under the US Foreign Corrupt Practices Act (FCPA). The ruling (United States v Esquenazi) helps to define the reach of the FCPA and could favour defendants in challenging prosecutions, involving state-owned businesses not involved in government functions...
The World Bank Office of Suspension and Debarment six years on - Pascale and Hélene Dubois and Benjamin Brink Sweeney
On 25 June 2014, the World Bank released the first public report from its Office of Suspension and Debarment, furthering the Bank’s commitment to transparency and accountability regarding its adjudicative process for firms and individuals accused of fraud or corruption in the projects it finances. This document, entitled The World Bank Office of Suspension and Debarment: Report on Functions, Data, and Lessons Learned 2007–2013, adds to reports previously issued by the World Bank Integrity Vice Presidency (INT), as well as the World Bank Group Sanctions Board...
Anti-Corruption Newsletter February 2012
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Anti-Corruption Newsletter May 2010
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Security over Receivables: An International Handbook (2008)
Security Over Receivables: An International Handbook is a practical guide to the key issues involved in taking security over receivables in 39 jurisdictions. Adopting a jurisdiction by jurisdiction structure, each chapter examines the key matters to consider when taking security over debts in a particular region. By William Johnston