Anti-Corruption 2018

The Anti-Corruption guide provides expert legal commentary on key issues for businesses. The guide covers the important developments in the most significant jurisdictions.

Last Updated July 10, 2018


Authors



Winston & Strawn LLP Corporate America consistently trusts Winston with their most high-stakes litigation. Winston litigators have tried major jury and bench trials in virtually every significant federal and state venue and assisted with high-profile investigations related to SEC, AG, and other regulatory inquiries. They handle appeals before the US Supreme Court, US Courts of Appeals, and state appellate courts. Winston’s international arbitration attorneys have extensive experience with all the major arbitration and international claims institutions and rules, and the firm has locally qualified commercial litigators in Brussels, Hong Kong, London, Paris, and Taipei. Substantive areas of litigation work include: antitrust, securities, product liability, class actions, white collar, patent/trade mark/copyright, ERISA, insurance coverage, energy, and media and entertainment.


We are delighted to present the first edition of Chambers’ Global Anti-bribery and Anti-corruption Guide.

This Guide, which compiles the views and opinions of a group of leading practitioners, is designed to provide private practice and in-house lawyers with an overview of the anti-bribery and anti-corruption laws in [x] countries, practical guidance regarding the application and enforcement of those laws, and insight into potential future developments.

Anti-bribery and anti-corruption issues have received much greater prominence over the past decade, with legislators and enforcement bodies in a number of countries making a concerted effort to focus on corruption by a combination of the introduction of new legislation and through more rigorous enforcement of existing laws.

Statistics can often be viewed with a degree of scepticism, but a reliable barometer of the importance of anti-bribery and anti-corruption issues in the eyes of prosecuting authorities can be found in the number of prosecutions brought in the United States under the Foreign Corrupt Practices Act (FCPA). Until the mid-2000s, prosecutions under the FCPA were relatively rare. Indeed, during the period from the enactment of the FCPA in 1977 to 2005, no more than 14 prosecutions were brought in any given year, with the amount of monetary sanctions imposed during that period totalling less than USD280 million. However, with the greater emphasis placed by the US Department of Justice (DoJ) and the US Securities and Exchange Commission (SEC) in the mid-2000s on anti-bribery and anti-corruption issues, the number of enforcement actions for FCPA- -offences increased substantially from 2006 onwards. A corollary was an exponential increase in the amount of monetary sanctions imposed, with total fines of USD9.7 billion levied during the period since 2006.

Although parties involved in corrupt practices appear to be pursued most aggressively in the US, the surge in the number of prosecutions in the US for FCPA offences is indicative of a wider trend across a large number of countries. This has been accompanied by a more intense focus on bribery and corruption risks and the importance of putting in place appropriate internal controls.

Indeed, in the last few years a number of countries have implemented anti-bribery and anti-corruption laws that place the onus on companies to take such proactive steps. Perhaps the most prominent example is the UK’s Bribery Act 2010 (the Bribery Act), which is notable for its success in heralding a sea-change in the behaviour of companies towards anti-bribery and anti-corruption issues. This success is primarily the result of the introduction in the Bribery Act of a new offence, specific to commercial organisations, of a failure to prevent bribery (and a corresponding defence available to companies that have in place adequate procedures to prevent bribery). The Bribery Act, therefore, expects companies to assess carefully the risks applicable to their business and to put in place adequate safeguards to mitigate such risks.

The robust obligations imposed by the Bribery Act are, again, illustrative of a broad trend amongst countries to tighten up their laws. In 2016 alone new anti-bribery and anti-corruption laws were introduced in a number of countries including France, Jordan, Kenya, South Korea and Vietnam.

This is an important consideration for companies as there is now significant scope for companies to be liable for breach of the anti-bribery and anti-corruption measures in a number of different jurisdictions simultaneously. A recent illustration may be provided by Rolls Royce PLC which, in January 2017, agreed to pay almost GBP700 million to settle separate bribery and corruption claims brought by the UK Serious Fraud Office (with whom it entered into a deferred prosecution agreement, pursuant to which it was required to pay a financial penalty of GBP497 million), the US DoJ and the Brazilian Ministério Público Federal.

The Rolls Royce case demonstrates that anti-bribery and anti-corruption is not only a practice area to which companies will be required to devote greater attention and resources, but also one that is increasingly international in scope. For these reasons, it is more important than ever that practitioners are aware of the different approaches adopted by enforcement bodies across the world and the extra-territorial reach exercised by many. It is our hope that this guide will prove to be a timely and valuable contribution to the discussion on anti-bribery and anti-corruption, and that by virtue of the quality of its contributors, its jurisdictional reach and its practical guidance, it will be viewed as an essential resource by practitioners.

Authors



Winston & Strawn LLP Corporate America consistently trusts Winston with their most high-stakes litigation. Winston litigators have tried major jury and bench trials in virtually every significant federal and state venue and assisted with high-profile investigations related to SEC, AG, and other regulatory inquiries. They handle appeals before the US Supreme Court, US Courts of Appeals, and state appellate courts. Winston’s international arbitration attorneys have extensive experience with all the major arbitration and international claims institutions and rules, and the firm has locally qualified commercial litigators in Brussels, Hong Kong, London, Paris, and Taipei. Substantive areas of litigation work include: antitrust, securities, product liability, class actions, white collar, patent/trade mark/copyright, ERISA, insurance coverage, energy, and media and entertainment.