Foreign Bribery Gaps and Sealants: International Standards and Domestic Implementation

By Adeyeye, Adefolake | Business Law International, September 2014 | Go to article overview

Foreign Bribery Gaps and Sealants: International Standards and Domestic Implementation


Adeyeye, Adefolake, Business Law International


Introduction

The promise, offer or provision of money, goods or other benefits to a foreign public official (FPO) in order to influence favourable business deals - otherwise known as foreign bribery or transnational bribery - is a form of grand corruption, against which the international community has taken a strong stance. Many states focus on the demand side of corruption, ensuring that domestic public officials are penalised for accepting bribes. It is only since the 1990s with the adoption of a series of regional conventions on corruption, mainly in the Americas and Europe, that states have begun to consider the supply side of corruption. One exception to this rule is the United States, which, since the 1970s, has had transnational bribery laws.1 The Organization of American States' InterAmerican Convention,2 the Organisation for Economic Co-operation and Development (OECD) anti-bribery convention3 and the Council of Europe Criminal Law Convention on Corruption4 were all adopted in the 1990s, making foreign bribery a punishable crime.5

Up until the early 2000s when the Asian Development Bank (ADB) and the OECD devised an anti-corruption action plan for Asia and the Pacific,6 the region had been relatively quiet in addressing foreign bribery. With the adoption of the African Union Convention on Preventing and Combating Corruption7 and the United Nations Convention against Corruption (UNCAC) in 2003,8 the international fight against corruption seems to have reached its peak and it appears it is now up to states to ensure effective implementation of the international standards that have evolved. This article will examine the approach of the United Kingdom, United States and Singapore towards sealing foreign bribery gaps compliant with international standards. Specifically, it will consider foreign bribery offences, corporate liability and jurisdictional challenges and advances in the three countries.

The second part of the article will analyse recent Singapore cases that elucidate the Singapore approach to curbing bribery. Although there does not seem to be any documented cases of foreign bribery in Singapore, recent case law9 has considered the corrupt transactions with agents provision that apply to foreign bribery.10 Controversy surrounding the provisions relating to corrupt transactions with agents is well documented in OECD reviews of both the UK and Singapore.11 The focus here is on the use of the principal consent defence in light of the December 2013 UK Court of Appeal case of R v J and Others,12 which hopefully has put closure to the controversial question of whether an agent of corruption can the claim consent of a principal for accepting bribes. Finally, this part will briefly mention the US Foreign Corrupt Practices Act (FCPA), which, since 1977, has had a separate offence for bribery and more recently in 1998 amended provisions for more effective compliance with international standards.

The third part of the article will consider corporate liability for foreign bribes in the three States, with a special focus on applicable rules for parent liability, in light of the new Section 7 of the UK Bribery Act and the developments in the US that suggest a more aggressive and unprecedented approach towards parent corporate liability. Prior to the enactment of the UK Bribery Act, an applicable rule on parent liability was established in the UK but was unsatisfactory for foreign bribery. With the addition of the Section 7 offence of failure of a corporation to prevent bribery, the position in the UK seems slightly improved but overall still unsatisfactory.

The fourth part will consider jurisdictional principles adopted in the three countries to determine how far reaching they are in curbing foreign bribery and closing domestic loopholes in order to ensure foreign bribery does not go unpunished. The fifth part concludes the article.

Foreign bribery laws in action

In Singapore, foreign bribery is criminalised through Sections 6 and 37 of the Prevention of Corruption Act (PCA). …

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