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Public Administration and Anti-Corruption a Series of Policy Discussion Papers LAWS and LAW ENFORCEMENT on BRIBERY of FOREIGN P

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Public Administration and Anti-Corruption a Series of Policy Discussion Papers LAWS and LAW ENFORCEMENT on BRIBERY of FOREIGN P Public Administration and Anti-corruption A Series of Policy Discussion Papers [Translated Version] LAWS AND LAW ENFORCEMENT ON BRIBERY OF FOREIGN PUBLIC OFFICIALS: A COMPARATIVE STUDY OF INTERNATIONAL PRACTICES AND APPLICATION FOR VIET NAM February 2018 i The series of Policy Discussion Papers on Public Administration Reform and Anti-Corruption is commissioned by the Policy Advisory Team (2007-2016) and the Governance and Participation Team (from 2017) at UNDP Viet Nam. The series aims to analyse trends in Viet Nam regarding the implementation processes and options in specific public administration reform areas. In order to confront the social, economic, political and environmental challenges facing Viet Nam, policymakers need to adopt evidence-based decision- making. These policy papers aim to contribute to current policy debate by providing discussion inputs on policy reforms – thereby helping to improve Viet Nam’s development efforts. Three principles guide the production of the policy discussion papers: (i) evidence-based research, (ii) academic rigour and independence of analysis, and (iii) social legitimacy and a participatory process. This involves a substantive research approach with a rigorous and systematic identification of policy options on key public administration reform and anti-corruption issues. Citation: United Nations Development Programme (2018). Laws and Law Enforcement on Bribery of Foreign Public Officials: A Comparative Study of International Practices and Application for Vietnam. A policy research paper on anti-corruption conducted by Dao Le Thu and Phan Thi Lan Huong and commissioned by the United Nations Development Programme (UNDP). Ha Noi, Viet Nam: February 2018 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without prior permission. Disclaimer: The views expressed in this policy research paper do not necessarily reflect the official position of the United Nations Development Programme (UNDP). UNDP Viet Nam 304 Kim Ma, Ba Dinh Ha Noi - Viet Nam Tel : +84 4 38500 100 fax :+84 4 3726 5520 Enquiries: [email protected] ii The Research Team Dr. Dao Le Thu (Team Leader) Dr. Phan Thi Lan Huong (National Researcher) (Hanoi Law University) With the support of Ms. Do Thanh Huyen (UNDP) iii Table of Contents THE RESEARCH TEAM ..................................................................................................................................... III TABLE OF CONTENTS ...................................................................................................................................... IV LIST OF BOXES ................................................................................................................................................. V ACKNOWLEDGEMENTS .................................................................................................................................. VI ABBREVIATIONS ............................................................................................................................................ VII EXECUTIVE SUMMARY ................................................................................................................................. VIII INTRODUCTION ............................................................................................................................................... 1 1. COMPARATIVE ANALYSIS ON INTERNATIONAL PRACTICES IN ANTI-BRIBERY OF FOREIGN PUBLIC OFFICIALS ................................................................................................................................................... 4 1.1. LEGAL FRAMEWORK ON BRIBERY OF FOREIGN PUBLIC OFFICIALS ........................................................................ 4 1.2. ELEMENTS OF THE OFFENCE ........................................................................................................................ 8 1.3. CRIMINAL LIABILITY OF LEGAL PERSONS ....................................................................................................... 11 1.4. JURISDICTION OF FOREIGN BRIBERY LAW ..................................................................................................... 12 1.5. DETECTION AND LAW ENFORCEMENT ......................................................................................................... 14 2. VIET NAM’S CONTEXTS AND APPLICABLE INTERNATIONAL PRACTICES .................................................... 19 2.1. LEGAL FRAMEWORK AND ENFORCEMENT MECHANISMS ON BRIBERY OF FPOS IN VIET NAM: ADVANTAGES AND CHALLENGES ........................................................................................................................................................ 19 2.2. INTERNATIONAL PRACTICES AND APPLICATION FOR VIET NAM ......................................................................... 31 3. CONCLUSIONS AND RECOMMENDATIONS ............................................................................................... 33 3.1. CONCLUSIONS ........................................................................................................................................ 33 3.2. RECOMMENDATIONS FOR VIET NAM .......................................................................................................... 34 REFERENCES .................................................................................................................................................. 38 APPENDIXES .................................................................................................................................................. 41 APPENDIX 1: SUMMARY OF CHAPTER 2 OF THE RESOURCE GUIDE TO THE U.S FCPA ......................................................... 41 APPENDIX 2: TREATIES ON INTERNATIONAL COOPERATION IN CRIMINAL MATTERS VIET NAM HAS SIGNED ............................ 45 iv List of boxes Box 1: Bribe giver under the FCPA of the US 8 Box 2: Examples of Actions Taken to Obtain or Retain Business 11 Box 3: Example of jurisdiction of the UCPL 13 Box 4: The UK’s good practice in detecting bribery of FPO through Mutual Legal 16 Assistance (MLA) v Acknowledgements The research team would like to express special thanks to various representatives of Vietnamese authorities in the field of anti-corruption including the Central Committee of Internal Affairs, Ministry of Justice, Government Inspectorate, Supreme People’s Court and Supreme People’s Procuracy because of their valuable contributions to the work for the report. We would like to show our gratitude to the Mr. Gerry McGowam (National Bureau of Criminal Investigator, International Liaison Officer of the UK Embassy in Viet Nam, Malaysia, Laos), and Mr. Carlos J. Costa-Rodrigues (Attorney adviser, International Enforcement of International Affair Office - U.S Securities and Exchange Commission) for their sharing information and experience from international perspectives. We are especially indebted to Ms. Catherine Phuong, Assistant Country Director, Head of Governance and Participation Division; Ms. Đỗ Thanh Huyền (Policy Analyst); and Ms. Đào Thị Thu An, Judicial Project Manager (UNDP Viet Nam) who have read and given comments to our report. The authors would like to specially thank Mr. Hoàng Mạnh Chiến, Ex-Vice Director of the Investigative Bureau of Corruption Crimes (Ministry of Public Security of Viet Nam), for his contributions to initial research. The authors also wish to thank Ms. Henjing Huang, Ex-UN Volunteer to Viet Nam for her support in literature review. This report would not have been possible without financial support of the UNDP Vietnam. The views and opinions presented in this policy analysis are those of authors and do not necessarily reflect the official views and positions of the United Nations Development Programme (UNDP) in Vietnam. vi Abbreviations AC Anti-Corruption ACRC Anti-Corruption and Civil Rights Commission CPC Criminal Procedure Code FBPA Foreign Bribery Prevention Act FCPA Foreign Corrupt Practices Act FPOs Foreign Public Officials HCMC Ho Chi Minh City MLA Mutual Legal Assistance ODA Official Development Assistance OECD Organisation for Economic Co-operation and Development PC Penal Code PCI Pacific Consultants International PRC People Republic of China UCPL Unfair Competition Prevention Law UK United Kingdoms US United States UNCAC United Nations Convention against Corruption UNTOC United Nations Convention against Transactional Organized Crime vii Executive Summary Viet Nam has increasingly been taking part in time that the 2015 Penal Code imposes economic integration and globalization. In such criminal liability on giving bribe to FPOs; a context, there is an emerging trend of therefore, it is essential to conduct a investment by domestic investors in other comparative study on international practices countries, which may create risks of bribery of to identify solutions for effective law foreign public officials or internatinal enforcement, including guidelines on law organizations in order to obtain commercial application and settlement of other related advantages in international investments. In matters. Difficulties and challenges in law 2015, Viet Nam criminalized bribery of foreign development and enforcement in terms of public officials (hereinafter FPOs) based on the bribery of FPOs from other countries should current need to prevent such practices and its be examined comprehensively for lessons
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