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Foreign corrupt practices 2012

Index

Australia 2

Belgium 4

Brazil 5

France 6

Germany 8

Hong Kong 9

Indonesia 10

Luxembourg 12

The Netherlands 13

People’s Republic of China 14

Poland 15

Portugal 16

Russia 18

Spain 20

Sweden 21

Thailand 22

United Kingdom 23

United States 25

Vietnam 27

Foreign corrupt practices

A review of law and enforcement on Foreign Corrupt Practices in 19 jurisdictions across the Americas, Asia-Pacific and Europe.

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 19 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?

International focus recently has been on the UK’s Bribery Act 2010, which came into force in July last year. Although there is yet to be a major prosecution under the new legislation, commercial organisations worldwide have been taking the opportunity to review their anti-corruption policies, spurred on in part, no doubt, by the extended jurisdiction of the UK courts under the “associated persons” provisions in the Bribery Act. Recent UK court decisions, such as those relating to engineers Mabey & Johnson and publishers Macmillian and Oxford University Press, have penalised parent companies for corrupt conduct on the part of their overseas subsidiaries, confiscating dividends received. The increasing use of anti-money laundering provisions and new proposals by the EU to extend the freezing and confiscation of proceeds of crime by national law enforcement agencies are further examples of the continuing clamp down on corrupt conduct.

Other countries are adopting an equally robust approach to tackling corruption. Since we published the last edition of “Foreign Corrupt Practices” in July 2010, new legislation has been introduced in Luxembourg and China, while proposals for the first ever dedicated anti-bribery law are being considered in Brazil. It remains the case, however, that while European regulators appear willing to investigate allegations of corruption, (an increasing number of investigations are reported to be underway in France and Sweden), 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. As if to support this proposition, fines for bribery offences in Poland have actually been reduced substantially since 2010.

The fight to combat corruption is a global one. The publication of reports and guidance by international organisations such as the OECD and Transparency International is promoting a unified approach to tackling the problem. However, significant differences remain locally. 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 and Russia, for example, only individuals can commit a crime.

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” while 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.

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

Law stated as at August 2012

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Australia

Are foreign corrupt practices unlawful in this jurisdiction?

Yes, under the Criminal Code Act 1995 (Cth) (the “Criminal Code”).

If so, what activities are prohibited?

It is an offence to promise, offer or provide a benefit, or cause a benefit to be provided, to another person which is not legitimately due, with the intention of influencing a foreign public official (“FPO”) in the exercise of their duties in order to obtain or retain business or a business advantage that is not legitimately due (section 70.2 of the Criminal Code).

The benefit can be monetary or non-monetary and it can be provided to the FPO directly or to a third party (such as a relative or business partner of the FPO). The briber’s intention must be to influence the FPO to obtain business or a business advantage, but the Criminal Code does not require the corrupt payment to be successful.

A defence is available where the benefit is provided in the jurisdiction of which the FPO is a public official (as opposed to Australia or an unrelated third country) and the written law requires or permits provision of the benefit (section 70.3).

A defence is also available for ‘facilitation payments’ – minor benefits offered or provided for the sole or dominant purpose of expediting or securing the performance of a routine government action of a minor nature (section 70.4). A consultation paper launched in November 2011 by the Federal Government proposes removing the defence from the Criminal Code and there is an expectation that the defence will be revised or repealed as a result.

The definition of FPO is broad and includes employees, officials and contractors of a foreign government body, and persons performing the duties of an appointment, office or position created by custom or convention. It also extends to officers, employees or contractors of public international organisations (such as the United Nations).

There is no specific offence under Commonwealth legislation for private sector bribery.

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

No. An offence under section 70.2 of the Criminal Code can be committed where the conduct constituting the offence:

(i) occurs wholly or partly in Australia (or wholly or partly on an Australian aircraft or ship); or

(ii) occurs wholly outside of Australia and the person committing the offence is an Australian citizen or resident at the time, or a company incorporated in Australia.

To whom does the prohibition apply?

The prohibitions apply to Australian citizens and residents and companies incorporated in Australia.

The prohibitions also apply to all other persons and companies carrying out the conduct constituting the offence wholly or partly in Australia.

Liability can be attributed to a company where an employee, agent or officer of the company, acting within the actual or apparent scope of their employment or authority commits the offence. For a company to be liable, it must also be established that:

(i) the board of directors or a high managerial agent intentionally carried out the conduct or expressly, tacitly or impliedly authorised or permitted the commission of the offence;

(ii) a “corporate culture” existed that directed, encouraged or tolerated the offence; or

(iii) the company failed to maintain a “corporate culture” that required compliance with the relevant provision.

What are the fines/penalties?

The penalty for an individual who has violated section 70.2 is imprisonment for up to ten years, a fine of up to $1m (€900,000), or both (per offence).

The maximum penalty for a company is the greater of $11m (€9,900,000), three times the value of the benefit reasonably attributable to the conduct constituting the offence or, if the court cannot determine the value of that benefit, 10% of the company’s annual turnover during the 12 months prior to the offence.

3Foreign corrupt practices

What approach is taken in practice to enforcement?

The Australian Federal Police (“AFP”) and Commonwealth Director of Public Prosecutions are responsible for the investigation and prosecution of foreign corruption offences respectively.

The AFP has conducted approximately 30 bribery investigations to date. The first and only prosecution against an Australian company to date was brought in July 2011 – over ten years after the corruption offences legislation came into effect. The charges reportedly marked the culmination of a two-year international investigation during which the AFP worked with regulators around the world. The length and complexity of this and other similar investigations indicates that the AFP is now willing and able to devote significant resources to the investigation of foreign corrupt practices.

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, such proceeds are likely to fall within the definition of “proceeds of crime” under Division 400 of the Code. It is an offence for a company or individual to deal with “proceeds of crime” where they believe, or are reckless or negligent as to the fact, that the relevant money or property are proceeds of crime.

Further, such proceeds are likely to fall within the definition of “proceeds” under the Proceeds of Crime Act 2002 (Cth) and, as such, can be forfeited to the Federal Government.

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Belgium


Yes, under Articles 246-252 and 504bis-504ter of the Belgian Criminal Code (“BCC”).


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.


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 preliminary title 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.

In its decision of 23 December 1998, the Belgian Supreme Court applied these principles and in particular Article 10quater BCCP, in respect of a French national.

The Court held that the Belgian courts could exercise jurisdiction over an offence of bribery where at least one of the constitutive elements of the offence could be held to be centred on Belgian territory. In this case the Court held that it had jurisdiction over a French national accused of bribing two Belgian ministers (whose centre of activities was Brussels) to enter into a purchase agreement, in Belgium and for the benefit of the Belgian Air Force, with a company owned by him.


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).


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.


Some companies are currently the subject of investigations related to foreign corrupt practices. At present, however, we know of only one conviction. In its decision of 23 December 1998 the Supreme Court found a French national guilty of bribing two Belgian ministers and convicted him to 2 years of imprisonment and a fine of €1,487.36 (see above for more detail).


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.


Brazil


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

However, proposals for a new law exclusively dedicated to combating bribery are currently being considered by the Brazilian legislature. Should the proposals be approved, companies will be subject to civil and criminal liability arising from corrupt practices. The draft statute provides for fines of up to 20% of a company’s income and the dissolution of the company, depending on the severity of the infringement, in addition to the payment of damages.

Another bill of law being considered by the Brazilian legislature aims to include bribery in the list of heinous crimes (“major crimes”). If this happens, the penalties and the severity of enforcement would increase. However, since the discussions on both bills are still at an early stage, we cannot estimate if and when they are 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. The advantage does not need to be offered or given prior to the corrupt act being committed.

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, an international Court or an arbitrator 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, under specific conditions. 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 an increasing number of cases of alleged corruption involving an overseas element of a foreign official, some of them involving allegations of misappropriation of company assets. The first case referred to the Paris Criminal Court in 2011 is currently awaiting trial.

Extended powers were granted to investigators in 2007 to facilitate future investigations. However, an 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.

The French Supreme Court has granted non-governmental organizations (NGOs) legal standing and the right to become a civil party (partie civile) in criminal proceedings in the context of certain offences facilitated by international corruption practices (e.g. money laundering, receiving and so on), as long as the NGO is dedicated to fighting corruption. The Court has also recognised the right for an NGO to become a civil party in a case where the offence prosecuted was closely linked with a corruption offence


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 be claimed by any person disadvantaged as a result of an act of corruption and any relevant contracts could be voidable. An NGO permitted to take part in the proceedings may also be entitled to receive damages.

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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 €100m.


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.


Hong Kong


The Prevention of Bribery Ordinance (“POBO”) is the key anti-corruption law in Hong Kong. It contains offences relating to bribery of Hong Kong public servants and bribery of agents (which is broadly defined and may include Hong Kong public servants, foreign public officials, commercial agents or company employees). While these laws are primarily targeted at domestic corruption within Hong Kong, they also capture certain foreign corrupt practices.


POBO incorporates a general offence of bribing a Hong Kong public servant (Section 4(1)) and a number of specific offences relating to bribery in the context of public contracts, tenders, auctions and others dealings with public bodies. There is a general offence of bribing an agent (being a public servant or any person employed by or acting for another) (Section 9(2)). Cases involving public sector or private sector corruption can both be prosecuted under this section. In addition, there are offences relating to the solicitation or acceptance of bribes by Hong Kong public servants or agents.


Bribery of Hong Kong public servants may be prosecuted under Section 4(1) of POBO irrespective of where the relevant offer was made. However, in general, foreign corrupt practices by Hong Kong persons which take place wholly outside Hong Kong will not be triable in Hong Kong. In addition, the Hong Kong Courts have asserted jurisdiction in respect of bribery of foreign public officials which takes place in Hong Kong under Section 9(2) of POBO (as agents of a foreign government), notwithstanding that the bribery relates to activities by those foreign public officials outside Hong Kong. It is likely that a similar position would be adopted in respect of bribery of commercial agents in Hong Kong in respect of activities to be undertaken by such agents outside Hong Kong.


POBO applies to any person to the extent that the relevant conduct constituting the offence takes place within Hong Kong (for example, an offer to pay a bribe to a foreign public official or a sales agent with responsibility for a third country that is made in Hong Kong). It will also apply to a person located outside Hong Kong who offers a bribe to a Hong Kong public servant.


The general offences of bribing a Hong Kong public servant or bribing an agent may incur a term of imprisonment of up to 7 years and a fine of up to HKD500,000. The Hong Kong Courts also have the power to strip an offender of any advantage received as a result of the corrupt acts in question. An offence under Sections 5 or 6 of POBO (relating to public contracts and tenders) can result in imprisonment for up to 10 years and a fine of up to HKD500,000.


The Independent Commission Against Corruption (“ICAC”) is the public body with primary responsible for investigating corruption in Hong Kong. The Department of Justice examines evidence gathered by ICAC and advises on prosecutions. The Secretary of Justice must consent to all prosecutions. In recent years, ICAC has adopted an increasingly aggressive approach to tackling corruption. It is currently investigating a number of cases involving senior public officials and business leaders.

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

Yes. A company will usually be restricted from dealing with the proceeds of any contracts or sales which are known or suspected to have been procured by foreign corrupt practices. Under Section 25 of the Organized and Serious Crimes Ordinance (“OSCO”), it is a criminal offence if a person deals with any property, knowing or having reasonable grounds to believe that that property in whole or in part directly or indirectly represents any person’s proceeds of an indictable offence. For these purposes, it is sufficient that any conduct which occurred overseas would have been an indictable offence had it occurred in Hong Kong (corruption offences under POBO are triable as indictable offences in Hong Kong). The proceeds of foreign corrupt practices are therefore caught by OSCO. It is a defence to an offence under Section 25 of OSCO that the proposed dealing was reported to the Joint Financial Intelligence Unit (“JFIU”) in Hong Kong prior to the relevant act taking place and the JFIU gave its consent to proceed.

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Indonesia


Yes, under:

(i) Law No. 31 of 1999 on the Eradication of the Criminal Act of Corruption (“Law No. 31”), as amended by Law No. 20 of 2001 on Amendment to Law No. 31 (together, the “Anti-Corruption Law”); and

(ii) Law No. 11 of 1980 on Criminal Acts of Bribery (the “Anti-Bribery Law”).


The legislation addresses only corrupt practices in the domestic public sector. It does not address corrupt practices in the private sector or involving foreign public officials.

Under the Anti-Corruption Law, it is an offence for any individual or company to:

(i) unlawfully enrich himself or itself, or another person or company, which may cause loss to the state’s finances or economy (Article 2);

(ii) misuse any authority, opportunities or facilities available as a result of their post or position, with the intention of enriching himself or itself, or another person or company (Article 3 );

(iii) give or promise to give something to an official with the intention of influencing that official to do or omit to do anything in their position that conflicts with their duties (Article 5); or

(iv) give something to an official that is pursuant to, or in relation to, something that the official has done or omitted to do in their position that conflicted with their duties (Article 5).

The Anti-Corruption Law also creates offences addressing the receipt of gifts, bribes and promises, and the misuse of public power and authority, by civil servants, state operators, public officials and judges (Articles 6 to 12).

In December 2010, the Corruption Eradication Commission (“KPK”) issued a handbook concerning gratification. In order to maintain consistency and in the spirit of eradication of corruption, the KPK has a zero tolerance policy with respect to the giving and receiving of gratification to/by government officials. The KPK defines gratification in a very broad sense, namely including the granting of money, goods, discount, commissions, non-interest loans, travel tickets, lodging facilities, tours, free medical treatments and other facilities, whether received in the home country or abroad, and those conducted with or without the use of electronic facilities.

Under the Anti-Bribery Law it is an offence to give or receive a gratification as an inducement or reward for a person acting contrary to his/her authority or duties related to the public interest (Articles 2 and 3).


No, offences under the Anti-Corruption Law can be committed where the corrupt activities occur wholly or partly outside of the territory of Indonesia (provided that they result in the misuse of public power by an individual or company within the domestic public sector).

Further, the Anti-Corruption Law also applies to any individual or company outside of the territory of Indonesia who provides assistance, opportunities, facilities or information which leads to an offence under the Anti-Corruption Law (Article 16).

The Anti-Bribery Law also has extra-territorial effect, which means that acts of bribery and corruption committed outside of Indonesia will also be caught by the Anti-Bribery Law and can be prosecuted in Indonesia (Article 4), (again, provided that they result in an individual or company within the domestic public sector giving or receiving a gratification for acting contrary to his or her public interest authority or duties).


The prohibitions under the Anti-Corruption Law apply to all natural persons and companies, regardless of nationality or place of incorporation.

Further, if an offence is committed under the Anti-Corruption Law by or on behalf of a company, the criminal proceedings and any resulting penalties can be imposed on the company’s board of directors.

The Anti-Bribery Law applies to Indonesian and foreign citizens.


The penalty for breach of Article 2 of the Anti-Corruption Law is imprisonment for between four years and 20 years (or, in certain circumstances, life imprisonment) and/or a fine of between 200 million rupiah (€18,000) and one billion rupiah (€90,000).

The penalty for breach of Article 3 of the Anti-Corruption Law is life imprisonment in certain circumstances, or imprisonment for between one and 20 years and/or a fine between 50 million rupiah (€4,500) and one billion rupiah.

The penalty for breach of Article 5 is imprisonment for between one and five years and/or a fine of between 50 million rupiah and 250 million rupiah (€22,500). The penalties for breach of Articles 6 to 12 of the Anti-Corruption Law include imprisonment ranging from between one year and 20 years and/or fines of between 50 million rupiah and one billion rupiah. However, if the corrupt practices involve an amount of less than 5 million rupiah (€450), the maximum term of imprisonment is three years and the maximum fine is 50 million rupiah.

The penalties for breach of the Anti-Bribery Law are imprisonment of five years (for grantor) and three years (for receiver) and a maximum fine of 15 million rupiah (€1,350).



The KPK presently is responsible for investigating and prosecuting corruption offences. It is independent from the executive, judiciary and National Police and has over 100 employees in positions ranging from police to prosecutors and investigators. It is a very active agency and, through Indonesia’s Corruption Court, has succeeded in arresting and convicting several high-ranking political figures and executives in the private sector. It has been successful in numerous convictions that it has prosecuted through the Corruption Court since the KPK’s formation in 2003.

However, the ordinary district courts continue to handle most corruption cases and it is perceived that corruption remains a serious problem in Indonesia’s judiciary, parliament and other key institutions.


Yes, such proceeds are likely to fall within the definition of “proceeds of crime” under Law No. 8 of 2010 concerning the Prevention and Eradication of Money Laundering Crime (“Law No. 8”). It is an offence for an individual or company to:

(i) place, transfer, spend, pay, grant, deposit, carry abroad, convert or exchange with currency or securities; or

(ii) commit other actions with a view to hiding or concealing the origins of ‘wealth’ (which includes movable and immoveable and tangible and intangible goods) known or allegedly resulting from a ‘crime’ (which includes corruption).

It is also an offence for an individual or company to:

(i) hide or obscure the origin, source, designation, location, transfer the actual rights of ownership of wealth known or allegedly resulting from a crime; and

(ii) receive, control the placement, transfer, pay, grant, donate, deposit, exchange or use wealth known or allegedly resulting from a crime.

If an offence is committed by a corporation, the penalty may be imposed on the corporation or the corporate controller.

Penalties for individuals range from fines of up to 10 billion rupiah (€900,000) and imprisonment of up to 20 years. Penalties for corporations include a maximum penalty of 100 billion rupiah (€9m), freezing of assets, revocation of business licence, dissolution of the company, seizure of corporate assets and acquisition of the corporation by the state.

Penalties will also apply to individuals and corporations within and outside the territory of Indonesia that take part in or assist with the implementation of a money laundering crime.

The Financial Transaction Report and Analysis Centre (PPATK) has issued a number of implementing regulations in connection with the enforcement of Law No. 8.

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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, amended by the Law of 13 February 2011, 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. Since the enactment of the law of 13 February 2011, such corrupt activities need no longer be committed in part in Luxembourg in order to be unlawful.

Article 5-1 of the Code of Criminal Procedure now provides that any Luxembourg national, resident or foreigner found in Luxembourg, who has committed acts of corruption abroad, may be prosecuted and tried in Luxembourg regardless of whether those acts would be illegal under the law of the foreign country where they took place.

In this regard, the authorities of Luxembourg may act of their own volition and need not receive a complaint from the victim of the corrupt conduct or a request from the foreign authorities to prosecute such practices.

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.

Finally, 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 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 sentenced to 15 days to five years’ imprisonment, and to the payment of 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 Article 177 – 178a and 362 – 364 of 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 public official or 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 public official, employee or agent has done or refrained from doing in the past.

The prohibition under the DCC extends to so-called “facilitation payments”, although in practice acts that fall within the scope of the term “facilitation payments” as stated in the OECD anti- Bribery Convention are not prosecuted, in order not to conduct a more strict policy then the OECD convention prescribes.


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 persons and entities who commit bribery offences within the Netherlands. In relation to bribery acts committed outside the Netherlands, the prohibitions apply to all Dutch persons and entities that try to bribe a Dutch or non-Dutch public official and all non-Dutch persons that try to bribe a Dutch public official or a foreign person employed by the Dutch state. Dutch public officials also fall within the scope of the provisions, when accepting a gift or service, given to them with the aim of inducing them to do something or refrain from doing something in the course of their (current, former or future) employment.


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 €78,000. A person may also be removed from his office.


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.


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


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.

Further to amendments in February 2011, the PRC Criminal Law criminalises the offering of money and property to foreign public officers and international organisation officials to obtain an unjust advantage.


In general, bribery is prohibited.

According to the PRC Criminal Law, the offering of money, property or other benefit which aims to secure an unjust advantage, or the solicitation or receipt of money, property or other benefit in exchange for providing an 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 PLN5m (€1.2m), but not exceeding 3% 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 PLN7.5m (€1.8m). 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 of, and the solicitation or acceptance of a bribe, whether directly or indirectly, by an official performing his/her activity or due to his/her activity. Furthermore, they also 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 prohibitions extend 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 the solicitation or acceptance of a bribe by an official performing his/her function or due to his/her position is imprisonment for up to six years and six months. The penalty for offering or promising a bribe to an official performing his/her function or due to his/her position is imprisonment for up to four years, or a fine.

The penalty for soliciting or accepting a bribe for breach of official duty is imprisonment for up to 10 years and six months; but if not related to a breach of duty, the penalty is imprisonment for up to six years and six months, or a fine. The penalty for offering or promising a bribe is imprisonment for between one year and six years and six months.

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.

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Russia


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


Public bribery, i.e. the giving to and receipt by a state or municipal officer, foreign official (any appointed or elected person occupying any position in a legislative, executive, administrative or judicial authority of any foreign state as well as any person carrying out any public function for a foreign state), official of a public international organisation or an executive of a state legal entity or a state corporation, of a bribe in the form of money, securities, other assets, illegal provision of proprietary services or proprietary benefits in exchange for action (or inaction) in favour of the bribe-giver or the persons he represents, in cases where such conduct is within the officer’s authority or where the officer is able to assist in the commission of such conduct, or in exchange for general patronage or connivance.

Acting as intermediary in public bribery, i.e. the transfer of the bribe by order of the bribe-giver or bribe-taker or otherwise assisting the bribe-giver or bribe-taker to reach an agreement on bribery or the implementation of such a agreement.

Commercial bribery, i.e. the illegal giving to and receipt by a person carrying out management functions in a commercial or other organisation (other than state legal entities) of money, securities, other assets, proprietary rights or proprietary services in exchange for conduct benefiting 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 included in 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 criminal has not already been 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 the crime have not already been convicted in a foreign state. If any part of the conduct constituting 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.


The penalties for bribery vary depending on the amount of the bribe, the specific intention behind it and how the bribery is carried out.

Bribery of state officials

> Bribery of state officials is punishable by a fine of 15 to 30 times the amount of bribe or by forced labour (a new type of punishment under Russian Criminal Code applying from 1 January 2013 – it obliges the convict to work at the places determined by the penitentiary authorities and pay a certain percentage of income to the state) for up to three years, or imprisonment for up to two years together with a fine of 10 times the amount of the bribe.

> Where the bribe exceeds RUR25,000 (US$800), it is punishable with a fine of 20 to 40 times the amount of the bribe, or imprisonment for up to three years together with a fine of 15 times the amount of the bribe.

> Where the bribery is carried out with the specific intention of procuring conduct which is expressly contrary to law, the punishment is a fine of 30 to 60 times the amount of the bribe, or imprisonment for up to eight years together with a fine of 30 times the amount of the bribe.

> Where the amount of the bribe exceeds RUR150,000 (US$5,000) or stems from a conspiracy to commit bribery, the punishment rises to a fine of 60 to 80 times the amount of bribe and the debarment of the individuals involved from holding certain positions for up to three years, or imprisonment for between five and 10 years together with a fine of 60 times the amount of bribe.

> Bribery involving an amount exceeding RUR1m (US$33,000) is punishable with a fine of 70 to 90 times the amount of the bribe, or imprisonment for seven to 12 years together with a fine of 70 times the amount of the bribe.

Acting as intermediary in public bribery Likewise, acting as intermediary in a bribery offence is

punishable by a range of fines and sentences, depending on the nature and amount of the bribe. For example, where the amount of the bribe exceeds RUR25,000 (US$800), the offence is punishable by a fine of 20 to 40 times the amount of the bribe, with the debarment of the individuals involved from holding certain positions for up to three years, or imprisonment for up to five years together with a fine of 20 times the amount of the bribe.

Where the amount of the bribe exceeds RUR1m (US$33,000) the potential fine rises to 70 to 90 times the amount of the bribe and the debarment from holding certain positions for up to three years, or imprisonment for seven to 12 years together with a fine of 70 times the amount of the bribe.


Commercial briberyCommercial bribery carried out by a group of persons or to procure conduct which is expressly contrary to law is punishable with any of:> a fine of 40 to 70 times the value of the commercial bribe,

with a prohibition on occupying certain positions for up to three years;

> forced labour for up to four years;> arrest for three to six months;> imprisonment for up to six years.

Commercial bribery that is not undertaken by a group is punishable by lesser penalties, including > a fine of 10 to 50 times the value of the commercial bribe

with a prohibition on occupying certain positions for up to two years;

> a restriction on freedom of movement for up to two years; > forced labour for up to three years; 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 court may order their arrest or confiscation.

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Spain


Yes, under the 1995 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 improper act contrary to the duties inherent to his office, or not to carry out those duties, or to improperly delay those that he should carry out; 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, public servants of the European Union or those who are citizens of another Member State of the EU, 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, as determined by the judge, of between €2 and €400 a day for up to 24 months (for individuals) and between €30 and €5,000 a day for up to five years, or up to five times the profit obtained from the corrupt activity, whichever is the greater (for corporations), and a prohibition on holding a public position for a period of up to 12 years;

> if the conduct relates to the obtaining of public contracts or subsidies, penalties include being barred from tendering for public contracts, subsidies and aid in the future and the loss of tax and social security benefits or incentives for up to seven years. Where the corruption is of foreign public officials, a fine (as calculated above) may be imposed for a period of up to 12 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.


It is unlawful to give, promise or offer an undue reward, directly or indirectly, to any agent or employee in relation to the performance of their duties. It is also unlawful for the agent or employee to receive or accept the offer of such an undue reward. The requesting of such a reward is also prohibited and the prohibition applies notwithstanding that the act was committed before the employee or agent took up, or after he left, his position.

The prohibition on giving or accepting bribes applies to corrupt activities in both the public and the private sectors. Bribery is therefore prohibited even if the receiving party has no connection with a public office. It also applies to both domestic and foreign corruption. Furthermore, the prohibition applies to participants and officials in competitions which are open to public participation.

In addition to the above, so-called “influence trading” is prohibited. Accordingly, it is unlawful to promise or offer an undue reward to a person who will, as a result, influence another person’s decision, if that decision involves the exercise of official authority or public procurement. It is also unlawful for a person to receive, accept or request such an undue reward for the purpose of influencing another person’s decision in those circumstances.

Finally, it is prohibited for a business proprietor to supply a representative of his with money or other assets, if those assets are to be used by the representative to commit bribery or influence trading and the business proprietor is negligent as to what the funds will be used for. This is referred to as “negligently financing bribery”.


No. However, a corrupt activity that occurs abroad is an offence in Sweden only if it is also an offence in the jurisdiction where it occurs. It should be noted that by prohibiting the negligent financing of bribery, this limitation is expected to become less significant, as the negligent payment to an employee of a Swedish company will ordinarily be considered to take place in Sweden.


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

Where the corrupt acts occur in Sweden, the prohibition applies to all persons, regardless of their nationality. However, where the corrupt act is committed wholly outside Sweden, the jurisdiction of the Swedish courts only extends to foreign citizens that have residence or are present in Sweden.


Persons convicted of committing bribery are liable to 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 a prohibition from operating in trade for up to 10 years.

Serious bribery that can be viewed as a part of a company’s business activity may result in the company being fined up to SEK10m (approximately €1.2m). Penalties for corrupt acts committed outside Sweden are limited to the fines and penalties in the jurisdiction where they occur.


The Swedish Prosecution Authority takes a strict view on bribery and has, in a number of recent cases, investigated municipality officials and company representatives suspected of bribery in Sweden. However, recent case law regarding the enforcement of foreign bribery laws is scarce (although it is reported that investigations in this regard have been commenced).


The Swedish Penal Code stipulates that if a company has derived financial advantage as a result of a crime (e.g. bribery) committed in the course of its business, the value obtained as a result of the crime may be declared forfeited. Such forfeiture will require a conviction in a criminal case of bribery. Proceeds shall not be forfeited if forfeiture would be unreasonable. Forfeiture may be deemed unreasonable if the employee who has committed the criminal offence acted without the knowledge of, or against express instructions from, the management.

It is also possible, should such a claim be made by a contracting party, that a contract entered into as a result of corruption could be declared invalid, meaning that any proceeds received under that contract would have to be returned.

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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 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 (€250). Where the offeree is a judicial officer or public prosecutor or investigator, this increases to a maximum of seven years’ imprisonment and a fine of up to Baht 14,000 (€350). An official found guilty of any corruption offence can be liable for life imprisonment and/or a fine of up to Baht 60,000 (€1500). 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. The Bribery Act 2010, which came into force in July 2011, radically overhauled the UK’s previous anti-corruption regime, rationalising a number of statues and common law offences prohibiting the corruption of holders of public office. The Act contains two general offences of bribing and being bribed and includes a specific offence of bribing foreign public officials (“FPO”). The Act also creates a new offence which applies to commercial organisations only, of failing to prevent persons associated with the organisation from committing bribery. The Act applies to the whole of the UK, including Scotland, and also covers offences committed by UK nationals and residents wherever such offences are committed.


The Act makes it an offence for a person to offer, promise or give to another a financial or other advantage where the intention is that the advantage will influence the recipient improperly to perform a relevant function or reward him for the improper performance of such a function. It is not necessary for the person to whom the advantage is offered, promised or given, to be the same individual who will perform (or has already performed) the function or activity concerned. It is also an offence for a person to accept or request an advantage in relation to the improper performance of a relevant function.

Functions of a public nature, activities connected with a business or performed in the course of a person’s employment, and activities performed by or on behalf of a company, body or group of persons, are relevant functions for the purposes of the Act.

In addition there must be an expectation that the person performing the function will perform it in good faith, impartially or that in performing it, they are in a position of trust. The test of what is expected is what a reasonable person in the UK would expect in relation to the performance of the function.

With regard to FPOs, it is an offence to bribe an 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 and 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. Guidance on what constitutes adequate procedures has been issued by the Ministry of Justice, according to which bribery prevention procedures should be informed by six governing principles: proportionate procedures; top-level commitment; risk assessment; due diligence; communication (including training); and monitoring and review.


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.

Where a commercial organisation is found to have committed of one of the principal bribery offences, including bribing an FPO, any senior officer (such as a director, manager or company secretary) with a “close connection” to the UK will also be guilty of the offence if it is proven to have been committed with the officer’s “consent or connivance” (section 14), and liable to an unlimited fine or up to 10 years imprisonment.

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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. It is apparent that the UK’s main regulator and prosecutor of economic crimes, the Serious Fraud Office (“SFO”), is already taking a much more aggressive approach to the investigation of both domestic and foreign corrupt practices. To date there has only been one prosecution brought under the Act, that of a magistrates clerk convicted of taking bribes to falsify court records relating to driving offences. He was sentenced to three years in prison for the bribery offence and a further four years for misconduct in a public office, to run concurrently. However, it is likely that SFO will be looking to bring an increasing number of prosecutions for economic crimes, including bribery, in the short to medium term. Recent appointments have bolstered its capability to tackle bribery and corruption specifically and the new director has emphasised the regulator’s intention to take action against foreign commercial organisations conducting business in the UK that breach the prohibitions. In addition, the government is currently establishing a National Crime Agency, which will bring together various aspects of investigation and prosecution of economic crime and boost enforcement. The Agency should be fully operational by the end of 2012.


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.


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. Individual state laws also prohibit commercial bribery.


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 $2m 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 $5m 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 $25m.

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

26 Linklaters


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 2011, there were 49 enforcement actions against companies and individuals, 24 by the DOJ and 25 by the SEC. The DOJ and SEC extracted US$508.6m in criminal penalties, civil fines, disgorgement and interest. While this amount has been lower than years past, it should not be viewed as an indication that FCPA enforcement is on a downturn. It is likely to be the result of a number of FCPA related trials that diverted government resources from investigations during the time period. We continue to expect 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.


Vietnam


There are no specific laws or regulations on foreign corrupt practices in Vietnam. However, the 1999 Vietnamese Penal Code as amended in 2009 (the “Code”) and the 2005 Law 55 on Anti-Corruption (the “Anti-corruption Law”) prohibit corrupt practices generally, which can be inferred to extend to foreign corrupt practices.


Under the Code, offering a bribe to “persons who are assigned tasks or official duties and have powers during performance of such tasks or official duties” (Article 279 and 289 of the Code and Article 1.3 of the Anti-corruption Law) is unlawful. The law does not expressly provide whether such persons include foreigners in general and foreign state officials in particular. However, a broad interpretation would capture such persons.

The Code, the Anti-corruption Law and other regulations provide that offering or giving a bribe in the form of money, property or other material interest which has a value of VND2m (approximately €80) or more in order to obtain an illegitimate or otherwise unavailable benefit from recipients is subject to prosecution. Similarly, recipients who accept the bribe directly or through intermediaries can also be prosecuted. Offerors and recipients may include foreigners and foreign state officials.

The act of giving, offering or receiving a bribe with a value of less than VND2m is also considered a criminal offence if such act causes “serious consequences” or is a repeated violation by the person.

Corruption in the private sector is also unlawful. As mentioned above, although there is no express definition of “persons” in connection with the criminal offence of bribery, based on the interpretation of the act of bribery by the courts, bribery appears to also apply to persons with official duties and power in the private sector. Therefore, persons who offer bribes to persons in the private sector may be prosecuted pursuant to the Code.

While individuals who breach the regulations on anti-bribery are subject to criminal sanctions, criminal liabilities do not apply to companies and other legal persons. However, officers of companies who are involved in bribery may be criminally liable.

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

The principle is that the Code applies to criminal offences committed in the territory of Vietnam. In practice, the courts have deemed offences to be committed in Vietnam if the offence is wholly or partly committed in Vietnam.

However, the Code may also apply to criminal offences committed outside Vietnam where the persons committing such offences are Vietnamese citizens. In addition, the Code may capture criminal offences committed outside Vietnam by foreign persons in the circumstances provided for in the international treaties of which Vietnam is a party or member.


Subject to the principles described above, the prohibition applies to all persons regardless of nationality provided that the offences are committed in the territory of Vietnam. With respect to offences outside Vietnam, the prohibition also applies to Vietnamese citizens, and foreigners where international treaties of which Vietnam is a party or member so provide.


The criminal offence of offering, giving or receiving a bribe is subject to a penalty of from one year to life imprisonment. The actual penalty is determined on a case-by-case basis, based on the value of the bribe and the seriousness of the consequences, taking into consideration the material consequences (material damage) and non-material consequences (loss of reputation, adverse effect on politics, or infringement of life and health).

Offenders may also be subject to an additional monetary fine of between one and five times the value of the bribe.

Persons who are coerced to offer bribes but report the act before being detected may be exempt from penal liability and have all or part of the property they offered as bribes returned to them.

28 Linklaters


In terms of domestic corrupt acts, there are a number of bribery cases brought to the court each year with the value of the bribe ranging from small to large amounts. There have also been cases where foreigners offering bribes to Vietnamese officials have been prosecuted.

To date, there have not been any publicly disclosed cases where a foreign corrupt practice has been prosecuted under Vietnamese law.


Pursuant to Article 41 of the Code and Article 76 of the Penal Proceedings Code, objects or money acquired through the commission of a crime or the trading or exchange of such objects or money, shall be confiscated.

It is also a criminal offence in Vietnam to retain or use property in the knowledge that the property was acquired through the commission of a crime by other persons. Legalising money and property obtained through the commission of a crime or using such money or property to conduct business activities or other economic activities (“money laundering”) is also a crime (Article 250 and Article 251 of the Code).

Using or dealing with the proceeds of contracts or transactions knowing that those proceeds were procured by a foreign corrupt practice is an offence. In the case of a company, criminal liability will fall on the officers of such companies involved in such offence.


Thank you

Australia Louise Jenkins / Rachel Nicholson, Allens

Belgium Françoise Lefèvre / Sven Vercauteren

Brazil Carla Crippa / Raphael Augusto Cunha

France Emmanuel Moyne / Jean-Baptiste Potier

Germany Alexandros Chatzinerantzis / Klaus Saffenreuther

Hong Kong Jelita Pandjaitan / Steven Pettigrove

Indonesia David Holmes / Brooke Van Gils, Widyawan & Partners

Luxembourg Guy Loesch / Olivier Reisch

The Netherlands Daniella Strik / Jaap Kuster

People’s Republic of China Yuan Cheng / Zhirong Zhou

Poland Zbigniew Kruczkowski / Piotr Kosinski

Portugal Miguel Pinto Cardoso / Carla Borges / Raquel Silva / Inês Caprichoso

Russia Alexei Dudko / Anton Smirnov

Spain Francisco Málaga / Pilar Pueyo

Sweden Niclas Widjeskog / Benjamin Helldén-Hegelund

Thailand Pichitpon Eammongkolchai / Jirapong Sriwat / Chanon Amornthatri

United Kingdom Satindar Dogra / Jane Larner

United States Paul Alfieri / Martin Bloor

Vietnam Hop Dang / Melissa Rudd, Allens

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