Authorities continue to clamp down on corrupt misconduct...

• In the U.S. new laws have criminalised the demand for or acceptance by a foreign public official (FPO) of bribes with a U.S. nexus, closing a gap in the FCPA which dealt only with the supply side.

• Changes to the rules on corporate criminal liability in the UK have made it easier to prosecute companies for economic wrongdoing.

• In Mainland China, there has been an uptick in enforcement, particularly against corruption impacting ordinary livelihoods, such as in the healthcare sector.

• Enforcement in France has become notably more severe in recent years. However, the acquittal rate for bribery prosecutions is higher than for other types of prosecution. 

....although some jurisdictions are more active than others

• Despite Australia operating a formal self-reporting code for companies, enforcement there remains low.

• Germany prosecuted fewer cases in 2022 than in the previous year. Despite the low number of prosecutions in Luxembourg for bribery, there are no plans there to develop the area further.

• There have been no prosecutions in Portugal at all for foreign bribery, although lots of enforcement activity for domestic offences.

• Authorities in Sweden adopt a strict approach towards corruption and score well on Transparency International’s Corruption Perceptions Index. But even Sweden has been criticised by the OECD and EU for a lack of enforcement action.

• Surprisingly, and contrary to all other jurisdictions surveyed, the U.S. and Australia continue to make an exception for facilitation payments.

Governments continue to push enforcement onto the private sector through an increased emphasis on corporate compliance and self-regulation

• The UK’s corporate offence of failing to prevent bribery by employees, agents and other “associated persons” is being emulated across the globe; a similar offence has been introduced in South Africa and one will come into effect in Australia later in 2024.

• In Spain, private companies are focussing on compliance and the prevention of wrongdoing through the introduction of internal ABC programmes while in Germany, companies may be liable if their owners fail to implement required supervisory measures to prevent bribery by their employees.

• In France, large companies are obliged to implement a compliance plan to identify and mitigate against corruption, with administrative sanctions for individuals and companies that fail to comply.

• Singapore’s regime is particularly strict; companies are held accountable for wrongdoing by employees regardless of their internal prevention measures.

• In Portugal, however, there remain challenges and a notable lack of monitoring over regulations introduced in 2021 establishing compliance and whistleblowing regimes to prevent and sanction illegal conduct.

Confession and cooperation remain key

• The deferred prosecution agreement (DPA) regime in the UK continues to be employed to settle bribery investigations and has become the usual way of dealing with such prosecutions in the right circumstances.

• In Singapore, the outcome of the first case to be dealt with by way of DPA is awaited, while the question of whether to introduce a DPA regime in Australia will be considered again in 2026.

• The U.S. incentivises corporate disclosure and cooperation through specific policies, while the Belgian “repentance” regime offers a reduced sentence in return for a confession and the provision of evidence against third parties. Similarly, in Japan, the prosecutor may negotiate agreements with those accused of bribery and corruption in return for information.

While gifts and hospitality remain largely unregulated, they are increasingly on authorities’ radars

• Few jurisdictions have specific laws dealing with gifts and hospitality (G&H) but it is widely recognised that they may constitute bribery given the typically broad definition of an “advantage”. Whether G&H are challenged by local authorities may depend on their value and “social acceptability”.

• Generally, public officials are subject to stricter rules in this regard than private entities and may even be forbidden from accepting or offering anything at all.

Cooperation on cross-border investigations and enforcement continues to grow

• Settlements such as the Airbus investigation demonstrate domestic agencies’ willingness to work together to tackle and sanction wrongdoing.

• Meanwhile, the U.S. continues to assume a wide jurisdiction when it comes to FCPA enforcement internationally.

• The European Union has committed to establishing a pan-EU regime for addressing wrongdoing in its draft directive on combatting corruption.

• The UK’s Serious Fraud Office has signalled its intention to work ever more closely with investigation and enforcement partners across the globe.