Why Anti-bribery Enforcement is Going Global

Companies in Austria and Central and Eastern Europe should pay increasing attention to global anti-bribery enforcement trends, Professor Andy Spalding, a member of IACA’s Frequent Visiting Faculty, told an audience of anti-corruption and compliance professionals in Vienna last week.

Speaking at an event co-organized by IACA and the new Vienna Chapter of the American Bar Association Section of International Law on 11 April, Prof. Spalding noted that anti-bribery enforcement involving companies is increasingly multi-jurisdictional and puts greater focus on individual liability.

These two important trends were the starting point for a wide-ranging and interactive discussion on the theme of “Out of reach of US and UK anti-corruption laws? THINK AGAIN”. The event was hosted by the KNOETZL law firm.

Prof. Spalding noted that until a few years ago, most of the attention had been on enforcement of the US Foreign Corrupt Practices Act (FCPA), which has broad extraterritorial reach. Indeed, of the ten largest FCPA settlements in history, eight have involved non-US companies.

Although the FCPA continues to play a major role in anti-bribery enforcement worldwide, other countries are also stepping up their efforts. They include the United Kingdom, where the UK Bribery Act came into force in 2011, Brazil, which Prof. Spalding described as “a global leader in anti-corruption enforcement” at present, and France.

Prof. Spalding acknowledged that the rise in multi-jurisdictional enforcement could increase the risk of double jeopardy, where a company could be punished in different countries for the same bribery-related offences. National law enforcement and regulatory bodies have so far tried to reduce this risk by “allocating” a company’s various offences among the different jurisdictions involved.

Meanwhile, the growing focus on individual liability in anti-bribery enforcement is “a game-changer”, according to Prof. Spalding, and stems largely from the Yates Memo of 2015, in which the US Department of Justice indicated a policy shift in this direction. This followed criticism that individual executives were not being held accountable for bribery-related offences by companies under the FCPA.

One recent example of multiple jurisdictions and individual liability in anti-bribery enforcement was the 2017 case involving Rolls Royce plc. This involved a joint resolution with the UK, US, and Brazilian law enforcement authorities and the subsequent indictment of five individuals.

The discussion covered many other related issues, including whether the US should provide greater incentives for companies to self-report bribery offences to law enforcement agencies; whether the existence of a good compliance programme is a solid defence for a company in different jurisdictions; the role of whistle-blower awards; and how companies can best manage bribery risks associated with third parties.

Prof. Spalding is also Professor at the University of Richmond School of Law (USA) and Senior Editor of the FCPA Blog. He was a lecturer last week in IACA’s new International Master in Anti-Corruption Compliance and Collective Action (IMACC), an academic degree programme specially designed for professionals involved with the business sector in these fields.


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