foreign corrupt practices 2010 - linklatersa foreign public employee to do, omit or delay any...

Foreign corrupt practices 2010

Your guide.

Index

Belgium 2

Brazil 3

France 4

Germany 5

Luxembourg 6

The Netherlands 7

People’s Republic of China 8

Poland 9

Portugal 10

Russia 11

Spain 12

Sweden 13

Thailand 14

United Kingdom 15

United States 16

Foreign corrupt practices

A review of law and enforcement on Foreign Corrupt Practices in 15 jurisdictions across the Americas, Europe, Russia and the Far East

Foreign corrupt practices represent a serious risk to all organisations with international activities. The risk goes not only to financial loss, but also to commercial relationships, reputation, liability and criminal exposure.

This publication is a quick reference guide to anti-corruption law and enforcement. For 15 jurisdictions, it provides at-a-glance answers to seven basic questions:> are foreign corrupt practices unlawful in this jurisdiction?> if so, what activities are prohibited?> in order to be unlawful, need such corrupt activities occur in whole or in part

within this jurisdiction?> to whom does the prohibition apply?> what are the fines/penalties?> what approach is taken in practice to enforcement?> are there any legal restrictions on a company’s ability to use or deal with the

proceeds of contracts or sales which are known or suspected to have been procured by foreign corrupt practices?

What emerges is that whilst U.S. and OECD pressure has meant that foreign corrupt practices are now to a greater or lesser extent unlawful in many countries worldwide, very significant differences remain.

For example, under Thai law it is not in principle unlawful to bribe anyone (whether in Thailand or abroad) unless they are a Thai public official or if there is specific legislation applicable (as in the case of arbitrators) and in Spain private bribery is not an express offence. Although in most jurisdictions both natural and legal persons can be liable for corruption offences, in Sweden the anti-corruption legislation applies only to individuals.

In contrast, in many other countries both public and private bribery (whether domestic or foreign) are expressly unlawful – but the tests vary widely. Therefore, in China a criminal sanction is likely to be imposed only if the corruption is found to be “serious” and in Russia only if it involves a “public danger or threat”. In the U.S. only a slight territorial nexus (such as a phone call or email from the U.S.) may be sufficient for the Department of Justice to argue for U.S. jurisdiction.

Historically, the effectiveness of the U.S. Department of Justice in investigating and bringing prosecutions for foreign corrupt practices has been in stark contrast to that of enforcement authorities in most other jurisdictions. However, there are increasing signs that global regulators are becoming more aggressive in their attitude towards tackling corruption in their territories. The new UK Bribery Act 2010 is a clear example of legislation that perhaps goes beyond even the demands of the OECD in this area. There has also been recent new legislation in Luxembourg and new proposals for the first ever dedicated anti-bribery law in Brazil. It remains the case, however, that while European regulators appear willing to investigate allegations of corruption, the instances of successful prosecutions for foreign corrupt practices remain few and far between. Indeed, suggestions have been made from Brussels that some Central and Eastern European accession states have given up prioritising the fight against corruption altogether.

This comparative review is intended to highlight issues rather than to provide comprehensive advice. If you have any particular questions about corruption or foreign corrupt practices, please contact the Linklaters LLP lawyers with whom you work.

Satindar Dogra, Partner, Alexandros Chatzinerantzis, Partner

Law stated as at July 2010

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Belgium

Are foreign corrupt practices unlawful in this jurisdiction?

Yes, under Articles 246-252 and 505bis-505ter of the Belgian Criminal Code (“BCC”).

If so, what activities are prohibited?

Bribery of a person holding a public office is unlawful; that is, making directly or indirectly, offering or promising an advantage of any nature to a person holding public office, for their benefit or the benefit of a third party, in order to influence his/her behaviour. Soliciting or accepting such a bribe, directly or indirectly, is also unlawful. This prohibition covers both Belgian officials and officials of a foreign country or an international organisation.

Private bribery is also unlawful. Private bribery consists of making, directly or indirectly, offering or promising an advantage of any nature, to a person who is the administrator or manager of a company, or the agent or employee of a company or person, for their benefit or for the benefit of a third party, in order to influence that person to commit or not commit an act linked to his/her position or facilitated by his/her position, and which is neither known nor authorised by the board of directors or the shareholders’ meeting, the principal or the employer. Soliciting or accepting such a bribe, directly or indirectly, is also unlawful. This prohibition applies both to foreign and domestic private bribery.

In order to be unlawful, need such corrupt activities occur in whole or in part within this jurisdiction?

As a general rule (i) Belgian courts have jurisdiction if the offence is committed in Belgium and (ii) under Belgian case law, a crime or offence is committed in Belgium if one of its constitutive elements took place on Belgian territory.

Moreover, an offence committed on foreign state territory is punishable before the Belgian courts, under certain circumstances, if certain conditions provided by Articles 7, 10, 11 or 12bis of the Belgian code on criminal proceedings (“BCCP”) are met.

In addition, according to Article 10quater BCCP with respect to the bribery of a person holding public office, Belgian courts will also have jurisdiction over:> persons committing the offence in a foreign country in respect

of a Belgian official;> persons committing the offence in a foreign country in

respect of an official of a foreign country or an international organisation, if that official is Belgian or the organisation has its seat in Belgium;

> Belgians or persons having their main residence in Belgium who commit the offence in a foreign country in relation to a foreign official or an official of an international organisation, if such act is also punishable under the laws of the country in which the act is committed.

To whom does the prohibition apply?

In relation to corrupt acts occurring in Belgium, the prohibition applies to all persons and entities. In relation to corrupt acts occurring outside Belgium, the jurisdiction of the Belgian courts extends to both Belgian and foreign nationals, as well as to Belgian and foreign incorporated entities if certain conditions are met (see above).

What are the fines/penalties?

Bribery of a person holding public office by an individual is punished with a prison sentence of up to 10 years and/or a fine of up to €1,100,000. For companies and other legal entities, the maximum fine is €2,200,000. Private bribery by an individual is punished with a prison sentence of up to three years and/or a fine of up to €275,000. For companies and other legal entities the maximum fine is €550,000.

For both public and private bribery, other sanctions include being debarred from certain offices and confiscation of the object and proceeds of the offence.

What approach is taken in practice to enforcement?

Some companies are currently the subject of investigations related to foreign corrupt practices, but as far as we know there are no convictions yet in this area.

Are there any legal restrictions on a company’s ability to use or deal with the proceeds of contracts or sales which are known or suspected to have been procured by foreign corrupt practices?

Yes. First, confiscation of the object and the proceeds of the offence can be ordered by Belgian courts.

In addition, based on Article 505 of the BCC, to use or deal with the proceeds of contracts or sales which are known, or suspected, to have been procured by foreign corrupt practices may result in the commission of further offences under anti-money laundering legislation.

3Foreign corrupt practices

Brazil


Yes, under the Brazilian Penal Code (the “Code”).

However, proposals for a new law exclusively dedicated to fighting bribery are currently being considered by the Brazilian legislature. Should the proposed wording of the draft statute be approved, companies will, for the first time in this jurisdiction, be subject to civil liability arising from corrupt practices. The draft statute also provides for fines of up to 30% of a company’s income, in addition to the recovery of relevant damages. However, since the discussions on the proposals are still at an early stage, it is currently impossible to estimate when this law is likely to come into force.


Bribery of foreign public employees:

The Code prohibits (i) the direct/indirect offering, promising or giving of any unlawful advantage to a foreign public employee in order to constrain him/her to do, omit or delay any official act related to an international business transaction, (ii) the direct/indirect offering, promising or giving of any unlawful advantage to a third party (not a public employee) as an inducement to a foreign public employee to do, omit or delay any official act related to an international business transaction and (iii) the direct/indirect requesting, demanding, charging or acceptance, to the benefit of him/herself or of a third party, of any unlawful advantage or promise of advantage, with the purpose of inducing a foreign public employee to do, omit or delay any official act related to an international business transaction. The above prohibitions also apply to Brazilian public employees.

Bribery of employees of competitors:

Law No. 9279/1996 also prohibits (i) the promising or giving of money or any other benefit to an employee of a competitor with the intention of obtaining unlawful advantages (e.g. to divert clientele of the competitor) and (ii) the acceptance of money or any other benefit or promise of benefit with the intention of providing unlawful advantages to a competitor of his/her employer. It is not clear whether this prohibition is limited to bribery of/by employees of competitors located within Brazil. However, based on the general rules of the Code, it is likely that no such limit applies.


Yes. The Code provides that Brazilian law applies only to crimes committed within the national territory. The place where a crime is committed is defined as the place where the action or inaction occurred, in whole or in part, or as the place where the outcome of the crime was effected or expected to be effected (i.e. the place where the official act was performed, omitted or delayed).

Therefore, the prohibition only applies to crimes committed in whole or in part within Brazil.


The prohibition applies to all persons and entities (regardless of nationality, place of incorporation etc.), provided that the crime was committed in whole or in part in Brazil.


Bribery of foreign public employees:

The crime of offering, promising or giving any unlawful advantage to a foreign public employee or a third party is punishable by imprisonment for up to eight years and a fine. Penalties may be increased by one-third if the foreign employee effectively performs the unlawful act as requested by the giver of the bribe.

The crime of requesting, demanding, charging or accepting any unlawful advantage is punishable by imprisonment of up to five years and a fine. Penalties may be increased by one-half if an agent who receives the bribe alleges or implies it is both for their benefit and that of the foreign employee.

Bribery of employees of competitors:

The penalty is imprisonment for up to one year or a fine.


We have not identified any investigation made or any prosecution that has been brought in Brazil for foreign corrupt practices. However, criminal investigations are often not made public.


Yes. The Code prohibits knowingly acquiring, receiving, transporting or hiding (whether for self benefit or for a third party’s benefit) any property that is the product/proceeds of a crime (e.g. a foreign corrupt practice).

Therefore the receipt of revenue from a contract procured through bribery of public employees is a criminal offence as long as the person receiving the revenue knows (and not only suspects) that the contract was effectively procured through bribery.

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France


Yes, under the French Criminal Code. The scope of the offence of bribery was extended in 2007.


In terms of foreign practices, the French Criminal Code prohibits all persons from proposing or making, without justification, at any time, directly or indirectly, any offer, promise, gift, present or advantage of any kind to an individual holding a public office or discharging a public service, mission or electoral mandate in a foreign state or within a public international organisation, for himself or for others, so that the relevant individual carries out or abstains from carrying out an act within his functions, duties or mandate or facilitated by his functions, duties or mandate. It is also prohibited for anyone to consent to such an act of corruption and for the relevant individual to request or accept such a bribe.

France also prohibits influence peddling to obtain contracts or other favourable decisions from public officials.

Interfering with the proper administration of justice by means of bribery within a foreign state, a foreign Court or an international Court is also a criminal offence.

French criminal law also prohibits acts of corruption towards any person who holds a management position or job other than that of public official. Although this offence does not contain any reference to a foreign practice, it could be applied in such a case.

French law also prohibits corrupt practices on a domestic level on similar terms.


A criminal offence is deemed to have been committed in France whenever part of the offence was carried out on French territory.

French criminal law is also applicable to crimes committed either by French nationals or by entities incorporated in France wholly outside the territory of the French Republic if the facts are punishable under the law of the country in which they were committed. Moreover, French criminal law is applicable to any crime punishable under French law by imprisonment and where the victim is either a French national or an entity incorporated in France, regardless of whether it is committed by a French or a foreign national wholly outside the territory of the French Republic.

When the perpetrator of certain foreign corrupt practices is physically present in France, he can be tried in France in

accordance with certain procedural rules, even if the practices took place wholly outside France. Individuals and legal entities who acted in France as accomplices of corrupt practices that took place wholly outside the territory of the French Republic may be tried in France under specific conditions.


Subject to the principles described above, it applies to all individuals and legal entities.


Individuals face fines of up to €150,000 and the court can order a prison sentence of up to 10 years for corruption, plus additional penalties.

Legal entities face fines of up to five times those that can be ordered against individuals, as well as additional penalties (e.g. for up to five years: exclusion from government contracts, prohibition from offering their shares to the public, the closing of an establishment, etc.).


Investigations are reported to be underway in a number of cases of alleged corruption involving an overseas element, some of them involving allegations of misappropriation of company assets.

Extended powers were granted to investigators to facilitate future investigations. However, any employee who, in good faith, discloses to his employer and any judicial and public authority, any corrupt practice of which he gained knowledge in the course of his duties benefits from a specific protection.


Such proceeds may fall within the crime of receiving the proceeds of an offence, which is punished by a fine of up to €375,000 and a prison term of up to five years. A company can also be held liable for this offence and ordered to pay fines of up to €1,875,000, plus additional penalties. Such proceeds may also be confiscated.

Damages could also be claimed by any person disadvantaged as a result of an act of corruption and any relevant contracts could be voidable.


Germany


Yes, under the German Criminal Code (the “Criminal Code”).


Corruption of public officials is unlawful. A person who offers, promises or grants a public official an advantage for the accomplishment of an act contrary to duty (bribery, section 334 of the Criminal Code) or in accordance with duty (granting of an advantage, section 333 of the Criminal Code), which has already been taken or which is still to be taken, renders himself/herself liable to prosecution. Also the public official renders himself/herself liable to prosecution in these cases upon acceptance of the advantage (sections 331, 332 of the Criminal Code).

The International Bribery Act and the EU Bribery Act extend the scope of application of most of the above sections of the Criminal Code to bribery of foreign public officials and also penalise bribery of members of a foreign legislative body or an international organisation in connection with international business transactions.

Corruption in the course of business and trade may also be unlawful. It is illegal for an employee to offer, promise, grant or accept an advantage in order to obtain improper preferential treatment in relation to the supply of goods or services (section 299 of the Criminal Code). This prohibition in principle applies both to domestic and foreign corruption.

Companies themselves may be exposed in relation to public and business corruption. The Administrative Offences Act (Ordnungswidrigkeitengesetz) provides that companies may be fined where an executive body with representational authority, holder of a statutory power of attorney (Prokurist) or general agent (Generalbevollmächtigter) has committed a crime or an administrative offence, if this violates an obligation of the entity or the entity has been enriched. This therefore may apply to foreign corrupt practices.

In addition, companies will be guilty of an administrative offence if their management has failed to fulfil the supervisory measures required to prevent bribery by employees of the company.

In order to be unlawful, need such activities occur in whole or in part within this jurisdiction?

As a basic principle, the relevant offences are criminal when committed at least in part inside Germany. However, there are several exceptions to that restriction which significantly extend the applicability of the German Criminal Code. These exceptions comprise, inter alia, the following cases:> acts committed by German citizens> acts committed against German and EU-member state officials.

In these instances, the acts are criminal irrespective of where the offences have been committed.


The rules of criminal law regarding international corruption apply primarily to individuals such as private persons or public officials. The Administrative Offences Act also covers companies and other legal entities.


The Criminal Code provides that persons found guilty of bribery or a related offence may either be fined or imprisoned. Sentences of imprisonment may be of up to 10 years. A legal entity may be fined up to €1,000,000 for violations under the Administrative Offences Act. If the profit generated by the offence is higher, then the fine can be as high as the profit made or even exceed that. In recent cases, fines have even exceeded €100 million.


Activities that are suspected of involving corrupt practices are investigated and prosecuted by the police and the public prosecutor’s office. Most public prosecutors’ offices include departments dealing exclusively with investigating and prosecuting such activities. No current figures are available, but the number of investigations, as well as prosecutions, seems to be on the increase due to a rise in the reported cases of corruption.

Preventative measures are being taken by various Federal Ministries, for example, by issuing brochures on preventing corruption as well as distributing the OECD Guidelines to companies.


Yes. The Criminal Code provides for confiscation and forfeiture as measures of withdrawing proceeds of criminal offences, i.e. bribery and related offences. According to the Criminal Procedure Code, a court may order the seizure of proceeds at an early stage if they are suspected to have been procured by a criminal offence. Moreover, section 261 of the Criminal Code makes money laundering a criminal offence. This includes concealing pecuniary advantages resulting from bribery; concealing, obstructing or imperilling the determination of their source; and concealing, obstructing or imperilling the discovery, forfeiture or confiscation of such advantages. In addition, if the company is a financial institution or an insurance company, it may be subject to various duties of care and reporting obligations in this regard, under the German Anti-Money Laundering Act. Breaches of these obligations are punishable by fines of up to €100,000.

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Luxembourg


Yes, under the Luxembourg Criminal Code (the “Code”).


Articles 246 and 247 of the Code prohibit, in general, corruptly soliciting, receiving, promising or offering any gift, reward or other advantage, whether directly or indirectly, as an inducement to a person to do or forbear from doing anything in respect of any matter in which a public body is concerned or in relation to his principal’s affairs.

Article 10 of the law of 16 April 1979 on the Statute of Luxembourg Civil Servants prohibits officials from requesting or accepting, directly or indirectly, any material advantage which could place them in conflict with their legal duties.

The Law of 23 May 2005 prohibits passive and active corruption in the private sector.

For these purposes passive corruption occurs where a director or manager of a legal entity, mandatory or agent of a legal entity or a natural person solicits or accepts, directly or through an intermediary, an offer, promise or advantage of any nature for themselves or for a third person, in order to do or abstain from doing any act of their function or facilitated by their function, without the knowledge and without authorisation, as appropriate, of the board of directors or the general assembly, the principal or the employer (Article 310). Active corruption is the offering, promising or conferring of such advantage (Article 310–1).

The above prohibitions apply both to domestic and foreign corruption.


No, subject to the following comments.

The Code applies to EC civil servants or national civil servants of foreign states, as well as to members of the Commission of the European Community, the European Parliament, the Court of Justice or the Court of Auditors of the European Community or any other international organisation.

Under the Code of Criminal Procedure, acts committed outside Luxembourg are considered to be committed within the jurisdiction of the Luxembourg courts if any one element of an offence has been perpetrated on the territory of the Grand-Duchy of Luxembourg.


Since the introduction of the law of 3 March 2010 on the criminal liability of legal entities, criminal law in Luxembourg applies to natural persons and to legal entities.

In relation to corrupt acts occurring in Luxembourg, the prohibition applies to private and public legal entities except for the state and for cities, and to all natural persons whether employed in the public sector or in the private sector and irrespective of their nationality.

Under the Code of Criminal Procedure, a Luxembourg national who commits a criminal offence abroad, that would also be unlawful under Luxembourg law, may be prosecuted and tried in Luxembourg. Moreover, a foreigner who is an accomplice to a criminal offence committed abroad by a Luxembourg national may be prosecuted and tried in Luxembourg.


A person found guilty of a public corruption offence can be punished by five to 10 years’ imprisonment and a fine ranging from €500 to €187,500.

In the case of corruption of judges, the Code provides for a punishment of 10 to 15 years’ imprisonment and a fine ranging from €2,500 to €250,000.

Other penalties may include having to reimburse the value of any gift or reward received and being debarred from appointment or election to public office for a period of between five years and life.

Active and passive corruption in the private sector are punishable, for natural persons, by one month’s to five years’ imprisonment and a fine ranging from €251 to €30,000. For legal entities the maximum fine provided for in Article 36 of the Code is multiplied by five.


To our knowledge, no prosecutions have to date been brought in Luxembourg for foreign corrupt practices.


Yes, restrictions apply to both natural persons (officers and employees) and legal entities. It is a criminal offence to acquire, use, possess, conceal, disguise, convert or transfer ‘criminal property’. A person found guilty of a ‘receiving offence’ can be punished by from 15 days to five years’ imprisonment, and a fine ranging from €251 to €5,000. Legal entities may be punished by the maximum fine provided for in Article 36 of the Code, multiplied by five.


The Netherlands


Yes, under the Dutch Criminal Code (the “DCC”).


Under the DCC, it is prohibited to make or offer a gift or service to a public official, including a person who has been or has the prospect of becoming a public official, with the aim of inducing him to do something or refrain from doing something in the course of his (current, former or future) employment. The same applies to the offer or provision of a gift or service as a reward for something the public official has done or did not do in the course of his (current or former) employment, regardless whether this would be in breach his duty.

Furthermore, it is prohibited for a person other than a public official (a “private person”), employed or acting on the basis of a mandate, to accept a gift or promise that is offered to him as a reward for something he will do or refrain from doing in the course of his employment or mandate, or to conceal the acceptance of such a gift or promise from his employer or principal, in bad faith. The same applies to a gift or promise offered as a reward for something the employee or agent has done or refrained from doing in the past. The person offering the gift or promise also commits a criminal offence, if he should reasonably have expected that the employee or agent would conceal the gift or promise from his employer or principal.

The prohibition under the DCC extends to so-called “facilitation payments”.


No. Under the DCC, it is also a criminal offence: (i) to bribe, in a foreign country, Dutch nationals who are acting as public officials or who are employed in the public service of a foreign state or by international organizations; and (ii) for Dutch nationals and entities to bribe a private person located outside the Netherlands, provided that the bribery is also a criminal offence in the country where the bribe was made.


The prohibitions apply to all Dutch public officials, and persons and entities that bribe a Dutch or non-Dutch public official or person other than a public official, provided that the bribery is also a criminal offence in the country where the bribe was made. The prohibitions also apply to non-Dutch persons and entities who commit bribery offences within the Netherlands.


Depending on the gravity of the offence, a public official, person or entity found to have engaged in corrupt practices prohibited under the DCC, can be imprisoned for up to four years or fined up to €76,000.


The Dutch National Police Internal Investigations Department is authorised to investigate foreign corrupt practices. Since its appointment, the Department has conducted several investigations, of which only a few have resulted in a criminal investigation. As far as we know, none of these criminal investigations has led to a conviction.


Yes. Illegally obtained assets can be confiscated by the Dutch state from a person or entity that is convicted of foreign corrupt practices. Furthermore, it is prohibited to acquire, possess or transfer assets, if the person or entity transferring the assets is aware that these were obtained through a criminal offence (e.g. corrupt practices). Finally, a person commits a criminal offence under Dutch law if he conceals the nature, origin, location or transfer of illegally obtained assets, or conceals the identity of the rightful owner of those assets, if he knows that those assets were obtained as a result of a criminal offence.

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People’s Republic of China


There are no laws or regulations in the PRC which deal specifically with foreign corrupt practices. However, the Criminal Law of the People’s Republic of China (“PRC Criminal Law”) prohibits corrupt acts in general, such as the offering and receiving of bribes, and criminal sanctions could be imposed on those who engage in certain corrupt practices (whether in the PRC or abroad) which are found to be serious.


In general, bribery is prohibited.

According to PRC Criminal Law as amended in February 2009, the offering, soliciting or receiving of money, property or other benefit which aims to secure or offer an unjust advantage, whether in the public sector or private sector, could constitute a criminal offence, depending on the circumstances. Key factors include the value of the benefits received and whether the receiver of the benefits takes advantage of his position in an organisation when offering the advantage. In addition, acting as an intermediary to facilitate the bribery of state officials may also constitute a criminal offence.

The Anti-Unfair Competition Law of the PRC (1993) prohibits business operators from using money or property or any other methods to bribe others in order to sell or purchase goods. Secret commissions or kickbacks qualify as bribes.


PRC Criminal Law applies under the following circumstances:> to all (either PRC nationals or foreigners) who commit crimes

within the territory of the PRC; a crime is deemed to have been committed within the PRC if either the act or consequences of a crime take place within the PRC;

> to PRC nationals who commit crimes outside the territory of the PRC and where the minimum sentence for such crime is not less than a three year fixed term imprisonment under PRC Criminal Law;

> to foreigners who commit crimes against the state or nationals of the PRC outside the territory of the PRC and where the minimum sentence for such crime is not less than a three year fixed term imprisonment under PRC Criminal Law, and only if such act is punishable according to the laws of the jurisdictions where it was committed.


With respect to corrupt acts occurring in the PRC, the prohibition applies to all persons and entities, regardless of their nationalities or jurisdictions of incorporation. With respect to corrupt acts committed outside the PRC, the jurisdiction of the PRC courts extends to PRC nationals and PRC-incorporated entities and, in some circumstances, to foreigners who have committed corrupt acts against the state or nationals of the PRC (see above).


According to PRC Criminal Law, if a natural person is found guilty of a corruption offence involving public officials, his/her property may be confiscated and he/she may be punished by detention of up to life imprisonment. If a corporation is found guilty of bribery, a fine may be imposed on the entity and the persons responsible for the corporation, as well as those persons actually responsible for the offence, may be punished by imprisonment of up to five years.

With respect to a corruption offence not involving any public officials, a person found guilty of such an offence may be subject to imprisonment of up to 10 years as well as fines.


It appears that to date, no prosecutions have been brought in the PRC for foreign corrupt practices. However, domestic bribery prosecutions are not uncommon in conjunction with the efforts being made by the Chinese government to build a credible market system.


The PRC Criminal Law is unclear in this regard but there is a risk that using or dealing with the proceeds of a corruptly procured contract may constitute an offence under money laundering legislation.


Poland


Yes, under the Polish Criminal Code (the “PCC”).


Public bribery: The PCC prohibits providing or promising a material or personal benefit to a public official in connection with their office. The law does not require that the benefit or promise thereof is granted with a view to a particular purpose, only that it is granted in connection with the public function of the recipient. Should the benefit or promise be of significant value or be granted to a public official in order to influence his behaviour and incline him to act contrary to the law, the punishment will be more severe.

Private/commercial bribery: The offence of commercial bribery takes place when a material or personal benefit or promise thereof is granted to or received by a director of a company or a person having significant influence over the decision making process in that company in exchange for actions that may damage the company, constitute unfair competition practices under the statute, or confer an inadmissible advantage upon the person giving or offering the bribe.

Under the Criminal Liability of Collective Entities Act 2002 (the “Act”) companies (and other “collective persons”) may be criminally responsible for the actions of persons acting on their behalf or with their consent or knowledge.


No.

As a general rule Polish criminal law applies to all actions taken within Poland or on a Polish vessel or aircraft, as well as actions taken by Polish citizens outside Poland.

As to foreigners, Polish criminal law will apply if the activity is directed against the interests of Poland, a Polish citizen or a Polish entity.

Polish criminal law will always apply, regardless of the law of the place in which the offence took place, if the offence was aimed against the security of Poland, against Polish public officers or Polish public offices, against material economic interests of Poland or where any proceeds from it, even indirect, were gained in the territory of Poland.


To all persons and entities, both Polish and foreign.


Bribery of public officials is punishable by imprisonment for up to eight years or, if the bribe is of significant value, up to 12 years. If the bribe aims to influence a public official to act contrary to the law, the offender is liable for imprisonment for up to 10 years.

Commercial bribery is punishable by imprisonment of up to five years or, if the offence causes significant damage to the company, up to eight years.

Penalties may also include confiscation of the benefits or proceeds received or value thereof stemming from the offence.

Companies committing an offence under the Act can be liable for a fine of up to PLN 20 million, but not exceeding 10% of revenue in the financial year in which the offence was committed. If a company re-offends within five years of the first sentence, the fine may be up to PLN 30 million. The penalties may also include certain bans, e.g. a ban on conducting commercial activity for a period of one to five years.


Currently numerous investigations regarding corruption are underway, mostly involving Polish persons and entities. We are not aware of any successful prosecutions for foreign corrupt practices.

As corruption is perceived to be a serious problem in Poland, enforcement authorities are likely to take a rigorous and strict approach to investigation and prosecution. In 2006 a new powerful anti-corruption agency was created to fight corruption and the current government aims to cut back bureaucracy, which is seen to be a root of corruption.


Under the Act, Polish Courts will order the confiscation of all proceeds even indirectly connected with corruption. Thus, all proceeds from a contract concluded as a result of bribery will be forfeited. Moreover, in order to guarantee enforcement, the seizure of corporate assets even indirectly connected with corrupt practices can be ordered before formal commencement of criminal proceedings.

In addition, handling (buying / selling / possessing / hiding) or assisting handling property resulting from corrupt practices may constitute a separate offence under the PCC, with a penalty of imprisonment for up to five years.

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Portugal


Yes, under the Portuguese Criminal Code (“PCC”).


Articles 372, 373 and 374 of the PCC prohibit the offer or promise to, and the solicitation or acceptance by an official of, a bribe, whether directly or indirectly, and regardless whether relating to acts or omissions contrary to the official’s duty. The prohibition extends to bribes made to third parties with the consent of an official. This prohibition applies to Portuguese public officials and to certain officials of the EU. If the relevant acts are committed in whole or in part in Portugal, the prohibition also applies to certain officials of Member States of the EU and of certain international organisations of which Portugal is a member.

The Law on the Crimes of the Responsibility of the Holders of Political Positions applies the above prohibition to political positions. If the relevant acts are committed in whole or in part in Portugal, this extends to the holders of political positions in other Member States of the EU, regardless of nationality or residence.

The New Criminal Regime on Bribery in the International Commerce and Private Sector (“BICPS”) also applies the above prohibition to Portuguese, foreign and international organisations’ officials and to holders of Portuguese or foreign political office where the intent is to obtain or maintain a transaction, contract or any undue advantage in international commerce.

As to bribery in the private sector, under the BICPS it is an offence to offer or promise a bribe to an employee of a private company or other legal entity in order to procure a breach of that person’s duties. The offence is deemed to be more serious if it has the effect of distorting competition or causing loss to third parties. Likewise it is an offence for that employee or other legal entity to solicit or accept such a bribe. This prohibition applies to foreign employees of private companies (subject to the requirements outlined below).

The PCC also prohibits the offer or promise of a bribe to or the solicitation or acceptance of a bribe by any person in relation to the exercise of real or supposed influence over the decisions of any Portuguese public entity (so called “influence peddling”). This prohibition applies to influencing foreign public entities.


Portuguese criminal law is applicable to acts committed outside Portugal:> against Portuguese citizens, by Portuguese citizens who live

at the time of occurrence and are found in Portugal;> by Portuguese citizens, or by foreigners against Portuguese

citizens, whenever: – the perpetrators are found in Portugal

– the facts are punishable according to the law of the place where they were committed, and

– extradition is refused, or delivery up is not granted pursuant to a European arrest warrant

> by foreigners found in Portugal where extradition is refused, or delivery up is not granted pursuant to a European arrest warrant;

> by or against corporate entities with a seat in Portugal.

Portuguese criminal law is also applied to acts committed outside Portugal when those acts correspond to certain crimes such as, for example, influence peddling.

The BICPS applies to Portuguese citizens and foreigners found in Portugal, regardless of the place where the relevant acts occurred.


In relation to acts occurring in Portugal or (subject to the requirements outlined above) abroad, the prohibitions apply to all persons and entities.


The penalty for soliciting or accepting a bribe for breach of official duty is imprisonment for up to eight years; but if not related to a breach of duty the penalty is imprisonment for up to two years or a fine. The penalty for offering or promising a bribe is imprisonment for between six months and five years.

When committed by a holder of a political position, more severe penalties apply.

Offering or promising a bribe to an official to obtain advantage in international commerce is punishable with imprisonment of between one and eight years. Bribery in the private sector is punishable with imprisonment for up to two years (passive bribery) or one year (active bribery) or with a fine. If the act is capable of distorting competition or causing loss to third parties, the punishment may go up to five years (passive bribery) or three years (active bribery) of imprisonment or a fine.

Influence peddling is punishable with imprisonment of between six months and five years.


We are not aware of any prosecutions brought in Portugal for foreign corrupt practices.


There is no specific law to that effect.


Russia


Yes, under the Russian Criminal Code (the “Code”).


Public bribery, i.e. the giving to and receipt by a state or municipal officer or an executive of a state legal entity or a state corporation of a bribe in the form of money, securities, other assets or proprietary benefits in exchange for actions (or inaction) in favour of the bribe-giver or the persons he represents in cases where such actions (or inaction) are within the officer’s authority or where the officer is able to assist in commission of such actions (inaction), or in exchange for general patronage or connivance;

Commercial bribery, i.e. the illegal giving to and receipt by a person carrying out management functions in a commercial or other organisation (except state legal entities) of money, securities, other assets or proprietary services for action or inaction in the interests of the bribe-giver.

The above prohibitions in principle apply both to domestic and foreign corruption.


No. The Code applies to crimes committed outside the territory of Russia in situations where:> a Russian citizen or a stateless person permanently residing in

Russia commits a crime against the interests protected by the Code, provided that there is no foreign judgment against him for that crime;

> a foreigner or a stateless person not permanently residing in Russia commits a crime against the interests of the Russian Federation or a citizen of the Russian Federation or a stateless person permanently residing in Russia, provided that the criminals were not convicted in a foreign state and;

> the application of Russian criminal law is stipulated in an international treaty, provided that the persons that allegedly committed a crime were not convicted in a foreign state.

If part of a criminal action was committed in Russia, this could trigger the application of Russian criminal law.


Under Russian law, only individuals may be held criminally liable. There is no criminal liability for legal entities. Liability is usually borne by the officers of the company involved in bribery or money laundering schemes. (See above)


Bribery of state officials‘Qualified’ bribery (i.e. where the intent is to procure actions by a state official which are expressly contrary to the law) is punishable with any of:> a fine of up to RUR 500,000;> loss of up to three years’ salary or other income or;> imprisonment for up to eight years.

Unqualified bribery is punishable by lesser penalties, including a fine of up to RUR 200,000 or 1.5 years’ salary or other income or imprisonment for up to three years.

Commercial briberyCommercial bribery carried out by a group of persons or by an organised group is punishable with any of:> a fine of up to RUR 300,000 or two years’ salary or

other income;> limitation of freedom of movement for up to three years;> arrest from three to six months;> imprisonment for up to four years.

Commercial bribery that is not undertaken by a group is punishable by lesser penalties, including a fine of up to RUR 200,000 or 1.5 years’ salary or other income or imprisonment for up to three years.


Prosecution of foreign corrupt practice is not commonplace in Russia and judgments on criminal matters are either not fully reported or (as is often the case) not published at all. It is therefore difficult to assess the approach taken by Russian authorities.


Russian law on money laundering defines the proceeds of crime as “assets acquired as a result of crime”. It is unclear whether the Russian courts consider that the proceeds of contracts or sales which are procured by corrupt practices fall into the category of proceeds of crime. However, there is a risk that such assets could be deemed to be proceeds of crime. If this is the case, the Russian Federal Service on Financial Monitoring is entitled to suspend operations in relation to the “infected” funds for up to five business days and the court may order confiscation.

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Spain


Yes, under the 2003 Spanish Criminal Code (the “Code”).


Article 419 of the Code addresses corrupt practices involving Spanish public servants (“Domestic Public Corruption”):> it is unlawful to (a) corrupt or try to corrupt Spanish authorities

or public servants by means of promises, presents and/or offerings, with the aim of obtaining from that authority or public servant the execution of an unfair act or omission in the performance of his duties; or (b) to accept propositions given by Spanish authorities or public servants relating to the granting of promises, presents and/or offerings with the purposes stated above;

> it is unlawful, from the standpoint of the Spanish authorities or public servants, to accept presents and/or offerings in exchange for the execution, in the performance of his duties, of an act or omission described above.

Article 445 of the Code addresses corrupt practices involving foreign authorities or public servants (“Foreign Public Corruption”):

It is unlawful to (i) corrupt or try to corrupt foreign authorities or public servants by means of promises, presents and/or offerings, with the aim of preserving or obtaining a contract or any other kind of irregular benefit in the context of international economic activities; or (ii) to accept propositions given by foreign authorities or public servants relating to the granting of promises, presents and/or offerings with the purposes stated above. Thus, granting gifts or making promises to foreign authorities or public servants will only be considered an offence if the purpose of the bribery is to obtain or to preserve a contract or other irregular benefit in the context of international economic activities. Any other kind of bribery involving a foreign authority or public servant is not considered an offence under Spanish law.

There is no specific offence of domestic or foreign private corruption (involving persons other than public officials), but such activity may fall within other offences.


In relation to Domestic Public Corruption, the prohibition applies to (a) Spanish authorities and public servants, and (b) any person (whether acting on his behalf or on behalf of a company) based in Spain at the time of carrying out the conduct that constitutes the corrupt practice.

With regards to foreign corrupt practices, the prohibition applies to any person (whether acting on his behalf or on behalf of a company) based in Spain at the time of carrying out the conduct that constitutes the corrupt practice, and to Spanish nationals committing these practices in a foreign state where such practices are forbidden by law.


No.


For both Domestic and Foreign Public Corruption:> if the act performed by the authority or public servant

(facilitating the obtaining of a contract or irregular benefit in the case of Foreign Public Corruption) constitutes a crime, the penalty is a prison sentence of up to six years, a fine of up to three times the value of the gift and a prohibition on holding a public position for a period of up to 12 years;

> if the act performed by the authority or public servant does not constitute a crime, the applicable penalty will depend on the state of execution: if said act has effectively taken place, the foreseen penalty is a prison sentence of up to four years and a prohibition on holding a public position for a period of six to nine years; while if it has not taken place, the penalty is a prison sentence of up to two years and the prohibition on holding a public position for a period of six years. In both cases, a fine of up to three times the value of the gift will also be imposed;

> if the conduct of the foreign authority or public servant consists of an omission of one of the acts that he should have carried out in the exercise of his duties, the Code imposes a fine of up to two times the value of the gift and a prohibition on holding a public position for a period of one to three years.


Foreign corrupt practices are offences prosecuted ex officio. That is to say, they are automatically prosecuted by the authorities. Judgments have been rendered by Spanish courts both in cases of domestic foreign corruption and international foreign corruption.


In any case, the proceeds obtained from the corrupt practice, or in anyway affected by it, will be seized by the court.


Sweden


Yes, under the Swedish Penal Code. Swedish law regarding bribery has been criticised for being unclear and unpredictable and the Ministry of Justice recently announced that the law in this area will be reviewed.


It is unlawful to offer any undue reward to, directly or indirectly, any agent, employee or public official for the exercise of their duties. The request of such a reward is also prohibited.

The prohibition applies to corrupt activities in both the public and the private sectors. Thus, bribery is prohibited even if the receiving party has no connection with a public office. The above applies both to domestic and foreign corruption.


No. However, a corrupt activity that occurs abroad is an offence in Sweden only if it is an offence in the jurisdiction where it occurs.


According to Swedish law, only an individual can commit a crime (e.g. bribery). The prohibition thus applies to legal entities and companies indirectly, through the persons representing them.

In relation to corrupt acts occurring in Sweden, the prohibition applies to all persons.

As to corrupt acts done wholly outside Sweden, the jurisdiction of the Swedish courts does not extend to foreign citizens that do not have residence or are not present in Sweden.


A fine or imprisonment of up to six years. Other penalties for an individual may include having to pay back the value of any gift or reward received and trade prohibition for up to 10 years.

Serious bribery that can be viewed as a part of a company’s business activity may bring about a company fine in an amount up to SEK 10,000,000. As to corrupt acts done outside Sweden, the fines/penalties are limited by the fines/penalties in the jurisdiction where it occurs.


The Swedish Prosecution Authority has a strict view on bribery. It is reported that a number of cases of alleged bribery involving foreign elements are being investigated at present. We are aware of no successful prosecutions for foreign corrupt practices to date.


In practice, there seem to be no such restrictions.

In theory, bribery that can be viewed as a part of a company’s business activity may give rise to forfeiture of such proceeds. However, such forfeiture would occur only as a legal consequence of a conviction in a criminal case of bribery. To date there has been no known case in Sweden where such forfeiture has been imposed.

There is also a possibility, if such a claim is made by a contracting party, that a contract established under the influence of corrupt activities may be declared invalid, meaning that any proceeds paid under that contract must be returned. However, there is no known case in Sweden where a contract has been declared invalid on such grounds.

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Thailand


Yes, under the Thai Criminal Code (the “Code”).


The offering to or acceptance by a Thai public official of a bribe is a criminal offence under Thai law. Pursuant to the Code, any official who accepts or agrees to accept any undue reward for performing or refraining from performing any of his functions, whether wrongfully or not, commits an offence, and anyone who offers any property, asset or any undue benefits to any official in an attempt to persuade him or her to act contrary to his or her function commits an offence. In addition, an intermediary involved in a corrupt activity, i.e. any person who receives any undue benefits from any other persons in consideration for persuading any official to perform or not to perform any of his or her functions, is also deemed to have committed an offence.

The Act supplementing the Constitution relating to the Prevention and Suppression of Corruption B.E. 2542 (1999) prohibits any state official (e.g. any person in a political position, government official, employees of state agencies and/or state enterprises and any person authorised to exercise state authority, and those who have been released from being state officials for not less than two years) from receiving any property or benefit from any person unless as prescribed by a specific regulation. Pursuant to the general principle of the Code, the above prohibition applies to bribery of a Thai public official outside Thailand if “consequences” occur or if it is foreseeable or likely that “consequences” will occur in Thailand. Generally speaking, it is likely or foreseeable that a Thai public official will bring the proceeds of a bribe back to Thailand such that it is foreseeable or likely that the consequence of the bribe will occur in Thailand. Further if one co-offender/accessory/principal is present in Thailand and another is outside Thailand, then the party outside Thailand commits an offence under Thai law.

Significantly, bribery of a non-Thai official is not an offence under the Code.

Further, bribery of a person other than a public official is not an offence under the Code unless the act/omission sought by the bribe is itself unlawful or there is particular legislation that specifically prescribes it as an offence (e.g. bribing an arbitrator).


No, subject to the requirement for a link to Thailand (as to consequences or co-offenders etc.) as stated above.


The prohibition on public bribery applies to all persons and entities regardless of nationality or place of incorporation, subject to the requirement for a link to Thailand as stated above.


A person found guilty of offering an undue reward to an official can be subject to up to five years’ imprisonment and/or a fine of up to Baht 10,000. Where the offeror is a judicial officer or public prosecutor, litigator or investigator, this increases to a maximum of seven years’ imprisonment and a fine of up to Baht 14,000. An official found guilty of any corruption offence can be liable for life imprisonment and/or a fine of up to Baht 60,000. In addition, the property or benefits given or taken as a result of corrupt activities will be forfeited.


It appears that no prosecutions have to date been brought in Thailand for foreign corrupt practices.


No. Thai law specifically restricts the transfer, use, disposition or acquisition of assets or cash directly received by a corrupt official, which constitutes a criminal offence. Although there is no legislation that directly imposes punishment against those who derive benefits from the contracts or sales procured by foreign corrupt practices (unless they are conspirators), the Supreme Court decision no. 7277/2549 ruled that the contract may not binding where its conclusion involved corrupt practice and malfeasance, meaning that the derived proceeds could be reclaimed under general law.


United Kingdom


Yes. At the time of writing, UK anti-corruption law is contained in a number of statutes and common law offences which prohibit the offering of any undue reward to the holder of a public office, done in order to influence his behaviour in office and incline him to act contrary to the principles of honesty and integrity. The receipt of such a reward is also prohibited. The functions of the person who receives or is offered a reward need have no connection with the UK and can be carried out in another country.

However, a new regime, the Bribery Act 2010 (the “Act”), was passed into law on 8 April 2010, and radically overhauls UK law in this area. The remainder of this Review sets out the law under the new Act. It should be noted that these provisions are not yet in force, but are expected to be implemented in April 2011.


It is an offence to bribe a foreign public official (“FPO”) by offering, promising or giving an advantage to the FPO where the intention is to influence the FPO in his or her official capacity as an FPO, where the FPO is not permitted or required to be influenced by the advantage under local written law (section 6 of the Act). It does not matter whether the advantage is financial or otherwise, and it can be given to the FPO directly or to another person at the FPO’s request. The briber’s intention must be to obtain or retain business or an advantage in the conduct of business.

There is no exemption for so-called “facilitation payments”, which remain illegal even if they are permitted, or even expected, by local custom.

“Foreign public official” has a wide definition and includes persons who hold a legislative, administrative or judicial position of any kind in a country or territory outside the UK, and who exercise a public function on behalf of that country or territory. It also extends to officials and agents of public international organisations, whose members are made up of countries, governments and/or other public international organisations.


No. It does not matter that the acts or omissions which comprise the offence under section 6 (or part of it) take place outside the UK, if the person committing the offence has a “close connection” with the UK. Those with a “close connection” include: British citizens and overseas citizens; British nationals and individuals ordinarily resident in the UK; companies incorporated in any part of the UK and Scottish partnerships (section 12).


The Act has a very wide remit and applies to British citizens and individuals ordinarily resident in the UK, and companies

incorporated in the UK. In addition, companies and partnerships incorporated or registered in the UK, and other companies and partnerships registered elsewhere but which carry on business in the UK, may also be liable for bribery offences committed by persons associated with them (including employees, agents, and subsidiaries), if they have failed to implement “adequate procedures” to prevent bribery occurring. At the time of writing, guidance on what will constitute “adequate procedures” has not yet been issued, but the government has indicated that it will be published before the Act is brought fully into force.


An individual found guilty of an offence under section 6 can be liable to an unlimited fine and imprisonment of up to 10 years. Companies and other business organisations can be liable to unlimited fines. Businesses also risk being debarred from competing for public contracts under the Public Contracts Regulations 2006.


The failure of UK authorities to bring prosecutions for foreign corrupt practices was one of the main criticisms of the old bribery laws. Under the Act, prosecutions may be brought by the Directors of the Serious Fraud Office, Public Prosecutions and of Revenue and Customs Prosecutions. While it is too early to say what impact the new Act will have on the approach taken by the enforcement agencies, it is apparent that the Serious Fraud Office is already taking a much more aggressive approach to the investigation of both domestic and foreign corrupt practices. The first prosecution against a UK company for overseas corruption was brought in September 2009, following the defendant company’s voluntary disclosure of corrupt activities. The company was fined £6.6 million. More recently, in April 2010, a former director of a healthcare product company was sentenced to 12 months’ imprisonment, suspended on appeal, on admitting making corrupt payments to foreign officials in order to further the company’s business.


Yes, such proceeds are likely to fall within the definition of “criminal property” under the Proceeds of Crime Act 2000. It is a criminal offence to acquire, use, have possession of, conceal, disguise, convert or transfer “criminal property” unless (a) certain required disclosures are made and (b) permission to proceed has not been expressly refused within a set notice period. In certain circumstances a failure to disclose such activities may itself be an offence. In addition, there is a very wide offence of entering into or becoming concerned in an arrangement which a person knows or suspects facilitates the acquisition, retention, use or control of “criminal property” by or on behalf of another person.

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United States


Yes, under the Foreign Corrupt Practices Act (“FCPA”).


The ‘anti-bribery’ provisions of the FCPA prohibit payments or providing anything of value by Covered Persons (defined below) to foreign government officials, political party officials, and candidates for political office in order to obtain or retain business. The FCPA does not require the corrupt payment to be successful.

The “books and records” provisions in the FCPA apply to issuers of U.S. securities that are registered with the U.S. Securities and Exchange Commission (the “SEC”). These provide a separate basis for liability in the event that prohibited payments are not accounted for properly in the company’s books and records and/or internal control procedures are inadequate.

The U.S. also imposes criminal penalties on those who bribe domestic public officials and certain private individuals related to financial institutions, as well as those who use bribery to affect sporting events or seaport security (18 U.S.C. § 201 et seq). Individuals who seek or receive prohibited bribes may also be exposed to criminal liability. The criminal penalties for bribery and graft, as well as additional civil penalties, exist apart from the provisions of the FCPA.


No. Generally, any domestic or foreign Covered Person and their agents may be held liable for furthering a corrupt payment that occurs within the U.S. Additionally, domestic Issuers or Domestic Concerns (both terms defined below) and their agents may be liable for furthering corrupt payments that occur outside the territory of the U.S. Any Person (as defined below) can be liable if the corrupt payment has a territorial nexus to the U.S. Territorial nexus is interpreted broadly by the U.S. Department of Justice (the “DOJ”) such that while untested in court, a seemingly minimal nexus to the U.S. may be sufficient for the DOJ to take the position that it has jurisdiction.


The FCPA’s anti-bribery provisions apply to three categories of “Covered Persons”. Each category is exclusive.> Issuers. Any domestic or foreign entity that issues securities

that are registered with the SEC or that is required to file reports under certain legislative provisions is subject to the FCPA, as are its officers, directors, employees, or agents and any stockholders acting on its behalf.

> Domestic Concerns. This category covers a broad group of persons and entities, including individual U.S. citizens (wherever located), U.S. resident aliens, and corporations and other business entities organised under U.S. state laws or having their principal place of business in the U.S. and their officers, directors, employees or agents.

> ‘Any Persons’. Any persons acting within the territory of the U.S. are covered by the FCPA. Moreover, any person, (including an entity organised in a foreign nation), is subject to the FCPA if she/he performs any act in furtherance of a corrupt payment within the territory of the U.S.


Anti-Bribery Penalties: Entities are subject to a criminal fine of up to $2,000,000 per violation. Any officer, director, stockholder, employee, or agent who wilfully violates the FCPA may face a criminal fine of up to $100,000 per violation and up to five years’ imprisonment. Criminal penalties may be increased to as much as twice the benefit sought by the violation. Additionally, civil proceedings may also be initiated, resulting in fines and, significantly, disgorgement equal to the amount of the gain.

Books and Records Penalties: An individual may be fined up to $5,000,000 and imprisoned for up to 20 years for a wilful violation of the record keeping and internal control provisions. An entity may be fined up to $25,000,000.

In both situations, civil proceedings could result in fines and disgorgement equal to the amount of the gain.



Both the SEC and the DOJ are aggressive in enforcing the FCPA and take an expansive view of its scope and reach even in circumstances where the connection to the U.S. is attenuated. In 2009, the DOJ brought 26 enforcement actions while the SEC was responsible for 14. The DOJ and SEC together named 33 individuals and 11 corporations in those actions, and the corporations involved paid $641,000,000 in criminal penalties, civil fines, disgorgement and interest. There is, moreover, every indication that monitoring compliance with the FCPA will remain a priority. In November 2009 the DOJ revealed that it had 130 open FCPA cases, signalling the likelihood of a prolonged period of heightened enforcement activity in the coming years.


The FCPA does not inherently regulate the use of proceeds that are obtained as a result of corrupt payments. The threat of disgorgement, however, may prevent an individual or entity from retaining those proceeds. Other U.S. laws, including those criminalising money laundering (which, among other things, prohibits certain transactions involving the proceeds of unlawful activity) may also be implicated by a violation of the FCPA.

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Thank you

Belgium Françoise Lefèvre / John Biart

Brazil Caio Campello / Carla Crippa

France Emmanuel Moyne / Jean-Baptiste Potier

Germany Alexandros Chatzinerantzis / Klaus Saffenreuther

Luxembourg Guy Loesch / Olivier Reisch

The Netherlands Daniella Strik / Laurens Prins

People’s Republic of China Yuan Cheng

Poland Zbigniew Kruczkowski / Piotr Kosinski

Portugal Miguel Pinto Cardoso / Carla Borges / Raquel Silva

Russia Alexei Dudko / Anton Smirnov

Spain Francisco Málaga / Jaime San Román

Sweden Anders Nordström

Thailand Pichitpon Eammongkolchai / Jirapong Sriwat

United Kingdom Satindar Dogra / Jane Larner

United States Paul Alfieri / Sterling Darling / Martin Bloor

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