IBA CONFERENCE: Where are we at in the fight against foreign bribery?

By Luke Balleny

What happens when the British subsidiary of a Swiss company is found to have bribed a Russian government official in Paris, using a U.S. bank to make the money transfer? Which country has jurisdiction? Does the company have to pay five times the fines, or is one fine split five ways? Those are the sorts of questions lawyers are asking at this year’s International Bar Association (IBA) anti-corruption conference.

The gathering is happening this Thursday and Friday at the headquarters of the Organisation for Economic Cooperation and Development (OECD) in Paris. It’s no coincidence that the OECD’s Working Group on Bribery is meeting at the same time, allowing many of the world’s most prominent corruption prosecutors to attend the IBA conference.

Participants were welcomed by Nicola Bonucci, the OECD’s director of legal affairs and recently appointed chair of the IBA Anti-Corruption Committee. Bonucci prefaced his opening remarks by saying he wanted to emphasise the “I” in IBA during his two-year tenure. And his talk, entitled “The fight against foreign bribery: a year in review”, bore that out.

Here’s an overview of some of the trends and developments Bonucci touched on:

United States: Bonucci noted that the United States is still the world’s foremost prosecutor of bribery using the much feared U.S. anti-bribery law, the Foreign Corrupt Practices Act.

UK: On anti-bribery enforcement, Bonucci described Britain as “the country which, in the last 12 months, made the most impressive progress in terms of law enforcement, in terms of cases, in terms of prosecutions, or at least (in terms of) settlements (with the authorities)”. He acknowledged the impending entry into force of Britain’s new anti-bribery law, the UK Bribery Act, and expressed his approval that Britain’s anti-graft prosecutor, the Serious Fraud Office (SFO), is unlikely to be split up in the near future.

Italy: Apologising for the late withdrawal of Fabio De Pasquale as a conference speaker, Bonucci explained that Italy’s chief prosecutor had to attend a bribery case. Bonucci said the case involved a British lawyer and someone else, but said - to sniggers in the audience - “I don’t remember who this someone else is...”

Spain: Spain was criticised for not doing enough to enforce its anti-bribery laws. But Bonucci said he hoped there might be more action soon as Spain has recently passed a new criminal liability law for legal entities (such as corporations) known as “legal persons”.

France: “Desperately the same as last year and the year before and the year before...” was how Bonucci described France’s level of anti-bribery enforcement. But progress is being made in one related area, he added. The anti-graft groups Transparency International France and SHERPA have instigated private actions against African heads of state who have acquired assets corruptly and stashed them in France. The groups hope their move will force the French authorities to investigate the source of some of these assets.

Russia, China and India: In the past year, Russia has adopted a new law on foreign bribery and joined the OECD’s Working Group on Bribery; China has also passed a new law on foreign bribery; and India’s parliament is currently debating a law, Bonucci said.

Indonesia: Indonesia is yet another country considering  implementing a foreign bribery law, Bonucci noted.