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Anti-Corruption Commodity Derivatives Regulations Laws and Anti-corruption A Global Guide Consulting Editor Roberto Hernández-García Consulting editor Roberto Hernández-García Managing director Sian O’Neill Anti-corruption Law and Regulation, A Global Guide is published by Globe Law and Business Ltd 3 Mylor Close Horsell Woking Surrey GU21 4DD United Kingdom Tel: +44 20 3745 4770 www.globelawandbusiness.com Printed and bound by CPI Group (UK) Ltd, Croydon CR0 4YY Anti-corruption Law and Regulation, A Global Guide ISBN 9781787421172 EPUB ISBN 9781787421189 Adobe PDF ISBN 9781787421196 Mobi ISBN 9781787421202 © 2018 Globe Law and Business Ltd except where otherwise indicated. All rights reserved. No part of this publication may be reproduced in any material form (including photocopying, storing in any medium by electronic means or transmitting) without the written permission of the copyright owner, except in accordance with the provisions of the Copyright, Designs and Patents Act 1988 or under terms of a licence issued by the Copyright Licensing Agency Ltd, 6–10 Kirby Street, London EC1N 8TS, United Kingdom (www.cla.co.uk, email: [email protected]). Applications for the copyright owner’s written permission to reproduce any part of this publication should be addressed to the publisher. DISCLAIMER This publication is intended as a general guide only. The information and opinions which it contains are not intended to be a comprehensive study, or to provide legal advice, and should not be treated as a substitute for legal advice concerning particular situations. Legal advice should always be sought before taking any action based on the information provided. The publishers bear no responsibility for any errors or omissions contained herein. Table of contents Introduction 7 Australia 61 Roberto Hernández-García Jocasta Giles COMAD, SC King & Wood Mallesons Robert Wyld The International Chamber 11 Johnson Winter & Slattery of Commerce: the business pioneer in the fight against Bolivia 81 corruption Estefania Paz Viviane Schiavi Lindsay Sykes International Chamber Ferrere of Commerce Denis Simonneau Brazil 91 L’Oréal Mariana Duprat Ruggeri François Vincke Camargo Corrêa Infra Attorney, Member of Leopoldo Pagotto the Brussels Bar Freitas Leite Advogados Anti-corruption and the 21 Bulgaria 103 legal profession Kamen Chanov Ashleigh Buckett Vanya Evtimova Lawyer Dessislava Fessenko Rocío Paniagua Kinstellar International Bar Association Canada 113 The United Nations 29 Wendy Berman Convention Against Corruption Lara Jackson (Merida Convention) and its Stephanie Voudouris effect in local law Cassels Brock & Blackwell LLP Lorena de la Barrera Carlos Hernández Chile 127 UNODC LPO Mexico Juan Eduardo Figueroa Sergio Huidobro Martínez Argentina 41 FIHS Abogados Roberto P Bauzá Santiago Oliva Pinto Rattagan Macchiavello Arocena China 141 Japan 261 Zhaopeng Yang Naoki Iguchi Haixiao Helen Zhang Nagashima Ohno & Tsunematsu Zhong Lun Law Firm Mexico 273 Czech Republic 155 Roberto Hernández-García Jitka Logesová Cynthia Irene Osio Sanchez General Prosecutor’s Office COMAD, SC (Czech Republic) Kristýna Del Maschio New Zealand 295 Filip Široký Gary Hughes Kinstellar Akarana Chambers France 165 Nigeria 311 Stéphane de Navacelle Ayodele Adeyemo Sandrine dos Santos Chukwuma Ezediaro Julie Zorrilla Babajide O Ogundipe Navacelle Sofunde, Osakwe, Ogundipe & Belgore Germany 181 Volker D Popp Panama 323 Compliance and AML Officer Darío Sandoval Shaik Fabrega Molino Ghana 199 David Ofosu-Dorte Peru 331 AB & David César Guzmán–Barrón Lawyer in management of Hong Kong 213 social conflicts, compliance Ada SW Chan and arbitration Sophia SY Lam Felix KH Ng Russia 347 Haldanes Anastasia Kayukova Roman Vedernikov India 227 German Zakharov Ramesh K Vaidyanathan ALRUD Law Firm Advaya Legal Singapore 355 Italy 239 Hamidul Haq Marco Dalla Vedova Istyana Ibrahim Luca Pietrantuono Rajah & Tann Dalla Vedova Associazione Professionale United Kingdom 371 Chris Hardjasa Morgan J Miller Paul Hastings LLP United States 391 Hillary Levun Perkins Coie LLP The United States Foreign 403 Corrupt Practices Act Josh Christensen Timothy L Dickinson Derek Turnbull Paul Hastings LLP About the authors 417 Introduction Roberto Hernández-García COMAD, SC 1. Corruption: a difficult to eliminate international enemy In recent years, a map of the world with red, orange and yellow colours assigned to different countries has been published every year, making nations tremble and question their situation with regarding to the existence and effects of corruption on them. Of course, we are speaking about the Corruption Perceptions Index (the Index) prepared and published annually by the non-governmental organisation (NGO) Transparency International. According to this highly respected organisation: The index, which ranks 180 countries and territories by their perceived levels of public sector corruption according to experts and businesspeople, uses a scale of 0 to 100, where 0 is highly corrupt and 100 is very clean.1 In the 2017 edition of the Index, a worrying statement frames the study: “CORRUPTION PERCEPTIONS INDEX 2017 SHOWS HIGH CORRUPTION BURDEN IN MORE THAN TWO-THIRDS OF COUNTRIES”. The authors go on to explain that: Analysis of results from Transparency International finds crackdowns on NGOs and media are associated with higher levels of corruption.2 The most significant aspect of the background to this story is, however, that international and national anti-corruption instruments are, more than ever before, working efficiently toward the end of international corruption. A number of international anti-corruption treaties, such as those of the United Nations (UN) and the Organisation for Economic Co-operation and Development (OECD) have been signed and have come into force. National legal frameworks against corruption have also been designed and implemented in many countries. Furthermore, there has been unprecedented growth in the number of NGOs that are focused especially on anti-corruption and which work continuously to help governments to draft, implement and modify legislation and to be effective in the fight against corruption. Current technology allows the identification, investigation and efficient prosecution of criminal masterminds, while cases like Lava Jato (Operation Car Wash) and Odebrecht in Brazil demonstrate that international corruption can be tackled and identified through cooperation between and the unstinting political will of governments. 1 www.transparency.org/news/feature/corruption_perceptions_index_2017. 2 www.transparency.org/news/pressrelease/corruption_perceptions_index_2017_shows_high_corruption_ burden_in_more_than. 7 Introduction 2. What is necessary for anti-corruption initiatives to succeed? Notwithstanding all of the initiatives discussed at 1 above, however, it seems that we are far from winning the war. It is therefore necessary for all who are involved in anti- corruption to think about the situation and consider the following questions. 1. Should we expect such results at present? 2. Are the wrong strategies being adopted? 3. Are governments and societies really trying to eliminate corruption? 4. What is the way forward if we are to succeed? A number of thoughts on these questions are set out below. 2.1 Should we expect such results at present? Some politicians have said – without scientific evidence – that when a corruption scandal emerges, and even if it has been prosecuted successfully, the perception of corruption of that country increases. Conversely, other politicians have said that, by making cases public, people become aware of corruption scandals and therefore feel that corruption is growing even if the government is doing its work, so that if the position of a country in the Index falls, it is because corruption is being fought. I have heard this argument put by public officers mainly to justify a lower ranking in a country’s place in the Index. In any case, speaking about my own country (Mexico) and with colleagues from other countries, this argument is not enough to justify a lower ranking and society’s perceptions about corruption. This is because, given all the anti-corruption initiatives discussed at 1 above, ideally we should not be in situation whereby two-thirds of the countries worldwide remain immersed in corruption. The idea of minimising corruption by making it analogous to little more than a bribe given to a police officer after passing a red light is ridiculous. Corruption has pervasive effects on all citizens worldwide. By giving misleading pretexts to their positions in the annual Index and to all the efforts made by organisations and individuals, countries are failing to consider what terrible effects corruption has in all our lives. This is explained in an OECD paper,3 which briefly summarises the corrosive effects of corruption by saying that: • it increases the cost of doing business; • it leads to waste or the inefficient use of public resources; • it excludes poor people from public services and perpetuates poverty; and • it corrodes public trust, undermines the rule of law and ultimately delegitimises the State. So, the answer is simple: we should not be going backwards when speaking about the fight against corruption, since we have the necessary elements to evolve rapidly in this battle rather than diminishing our presence in it. 2.2 Are the wrong strategies being adopted? Finding an answer to this question is more difficult, since at least two factors have to be taken into account: the legal framework and political will. If a country has a 3 The rationale
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