Anti-Corruption Regulation 2021 Anti-Corruption Regulation Anti-Corruption Regulation 2021 Contributing editors James G Tillen and Leah Moushey © Law Business Research 2021 Publisher Tom Barnes [email protected] Subscriptions Claire Bagnall Anti-Corruption [email protected] Senior business development manager Adam Sargent Regulation [email protected] Published by Law Business Research Ltd Meridian House, 34-35 Farringdon Street 2021 London, EC4A 4HL, UK The information provided in this publication Contributing editors is general and may not apply in a specific situation. Legal advice should always James G Tillen and Leah Moushey be sought before taking any legal action based on the information provided. This Miller & Chevalier Chartered information is not intended to create, nor does receipt of it constitute, a lawyer– client relationship. The publishers and authors accept no responsibility for any acts or omissions contained herein. The Lexology Getting The Deal Through is delighted to publish the fifteenth edition of Anti-Corruption information provided was verified between Regulation, which is available in print and online at www.lexology.com/gtdt. December 2020 and February 2021. Be Lexology Getting The Deal Through provides international expert analysis in key areas of advised that this is a developing area. law, practice and regulation for corporate counsel, cross-border legal practitioners, and company directors and officers. © Law Business Research Ltd 2021 Throughout this edition, and following the unique Lexology Getting The Deal Through format, No photocopying without a CLA licence. the same key questions are answered by leading practitioners in each of the jurisdictions featured. First published 2007 Lexology Getting The Deal Through titles are published annually in print. Please ensure you Fifteenth edition are referring to the latest edition or to the online version at www.lexology.com/gtdt. ISBN 978-1-83862-621-1 Every effort has been made to cover all matters of concern to readers. However, specific legal advice should always be sought from experienced local advisers. Printed and distributed by Lexology Getting The Deal Through gratefully acknowledges the efforts of all the contri butors Encompass Print Solutions to this volume, who were chosen for their recognised expertise. We also extend special thanks to Tel: 0844 2480 112 the contributing editors, James G Tillen and Leah Moushey of Miller & Chevalier Chartered, for their continued assistance with this volume. London February 2021 Reproduced with permission from Law Business Research Ltd This article was first published in February 2021 For further information please contact [email protected] www.lexology.com/gtdt 1 © Law Business Research 2021 Contents Global overview 3 Italy 82 James G Tillen and Leah Moushey Roberto Pisano Miller & Chevalier Chartered Studio Legale Pisano Combating corruption in banking – the Indian experience 9 Japan 92 Aditya Vikram Bhat and Shantanu Singh Yoshihiro Kai AZB & Partners Anderson Mōri & Tomotsune Australia 12 Liechtenstein 99 Howard Rapke, Alana Giles, Katerina Stevenson, Mollie Coffey, Siegbert A Lampert Gemma Hannah and Tess Simpson Lampert & Partner Attorneys at Law Ltd Holding Redlich Mexico 106 Canada 19 Luis A García Campuzano Milos Barutciski Villarreal – VGF Borden Ladner Gervais LLP Portugal 113 China 30 Paulo de Sá e Cunha, Miguel Pereira Coutinho and Kyle Wombolt, Jeremy Birch and Tracey Cui Marta Saramago de Almeida Herbert Smith Freehills LLP Cuatrecasas France 39 Russia 121 Kiril Bougartchev, Emmanuel Moyne, Sébastien Muratyan and Hannes Lubitzsch and Maxim Vladimirov Nathan Morin Noerr LLP Bougartchev Moyne Associés AARPI Singapore 129 Germany 49 Wilson Ang, Jeremy Lua, Ian Cheong and Marianne Chew Christopher Reichelt and Sabine Stetter Norton Rose Fulbright Stetter Sweden 141 Greece 55 Hans Strandberg, Olle Kullinger and Carl-Johan Allansson Ilias Anagnostopoulos and Jerina Zapanti Nordia Law ANAGNOSTOPOULOS United Arab Emirates 147 Hong Kong 62 Charles S Laubach and Alex Vromans Kyle Wombolt, Jeremy Birch and Cynthianna Yau Afridi & Angell Herbert Smith Freehills LLP United Kingdom 157 India 69 Jonah Anderson and Anneka Randhawa Aditya Vikram Bhat and Shantanu Singh White & Case LLP AZB & Partners United States 167 James G Tillen, Ian A Herbert and Leah Moushey Miller & Chevalier Chartered 2 Anti-Corruption Regulation 2021 © Law Business Research 2021 Singapore Wilson Ang, Jeremy Lua, Ian Cheong and Marianne Chew Norton Rose Fulbright RELEVANT INTERNATIONAL AND DOMESTIC LAW The Penal Code also contains provisions that relate to the bribery of public officials (sections 161 to 165). Public officials are referred to International anti-corruption conventions in the Penal Code as ‘public servants’, which have been defined in the 1 To which international anti-corruption conventions is your Penal Code to include mainly domestic public officials. country a signatory? Sections 161 to 165 describe the following scenarios as consti- tuting bribery: Singapore became a signatory to the United Nations Convention against • a public servant taking a gratification, other than legal remunera- Corruption on 11 November 2005 (ratified on 6 November 2009) and to tion, in respect of an official act; the United Nations Convention against Transnational Organized Crime • a person taking a gratification to influence a public servant by on 13 December 2000 (ratified on 28 August 2007). corrupt or illegal means; Singapore has been a member of the Financial Action Task • a person taking a gratification for exercising personal influence Force since 1992, was one of the founding members of the Asia- over a public servant; Pacific Group on Money-Laundering in 1997, and was admitted as a • abetment by a public servant of the above offences; and member of the Egmont Group of Financial Intelligence Units in 2002. • a public servant obtaining anything of value, without consideration Singapore is also a member of the Asia Development Bank’s and or with consideration the public servant knows to be inadequate, Organisation for Economic Cooperation and Development’s joint Anti- from a person concerned in any proceedings or business conducted Corruption Initiative for Asia and the Pacific, which it endorsed on by such public servant. 30 December 2001. In addition to the above, the Corruption, Drug Trafficking and Other Foreign and domestic bribery laws Serious Crimes (Confiscation of Benefits) Act (CDSA) (Cap 65A, 2000 2 Identify and describe your national laws and regulations Rev Ed) – Singapore’s key anti-money laundering statute – provides prohibiting bribery of foreign public officials (foreign bribery for the confiscation of benefits derived from corruption and other crim- laws) and domestic public officials (domestic bribery laws). inal conduct. The primary Singapore statutes prohibiting bribery are the Prevention Successor liability of Corruption Act (PCA) (Cap 241, 1993 Rev Ed) and the Penal Code (Cap 3 Can a successor entity be held liable for violations of foreign 224, 2008 Rev Ed). and domestic bribery laws by the target entity that occurred Sections 5 and 6 of the PCA prohibit bribery in general. Section 5 prior to the merger or acquisition? makes active and passive bribery by individuals and companies in the public and private sectors an offence. Section 6 makes it an offence for In a situation where the acquiring entity purchases shares in the an agent to be corruptly offered or to corruptly accept gratification in target entity, the acquiring entity is not legally liable for acts of bribery relation to the performance of a principal’s affairs or for the purpose by the target entity that occurred prior to the merger or acquisition. of misleading a principal. The term ‘gratification’ is interpreted broadly. This is because of the common law doctrine of separate legal person- Sections 11 and 12 of the PCA prohibit the bribery of domestic public ality. Likewise, there is no change to the legal liability or otherwise of officials, such as members of parliament and members of a public body. the target entity following the change of identity of its shareholder or A public body is defined as: shareholders. Subsequent to the acquisition, the commercial value of the target [A]ny corporation, board, council, commissioners or other body entity sought by the acquiring entity may be adversely affected in the which has power to act under and for the purposes of any written event that the target entity is investigated, prosecuted or ultimately law relating to public health or to undertakings or public utility held liable for acts of bribery that occurred prior to the acquisition. or otherwise to administer money levied or raised by rates or The target entity may be liable for investigation costs, suffer business charges in pursuance of any written law. disruptions and loss of revenue and may have to bear financial penalties or debarment consequences. These may adversely impact the value of The Singapore Interpretation Act defines the term ‘public officer’ as the shares in the target entity, which are owned by the acquiring entity. ‘the holder of any office of emolument in the service of the [Singapore] Government’. The PCA does not specifically target bribery of foreign public officials, but such bribery could fall under the ambit of the general prohibitions, namely section 6 on corrupt transactions with agents. www.lexology.com/gtdt 129 © Law Business Research 2021 Singapore Norton Rose Fulbright Civil and criminal enforcement FOREIGN BRIBERY 4 Is there civil and criminal enforcement of your country’s foreign and domestic bribery laws? Legal framework 6 Describe the elements of the law prohibiting bribery of a Yes, criminal enforcement against corrupt activities is provided for foreign public official. in both the PCA and the Penal Code. In particular, if the court rules that there has been a violation of the general prohibitions on bribery There are no provisions in the Prevention of Corruption Act (PCA) or the in the PCA, a penalty of a fine, imprisonment or both will be imposed Penal Code that specifically prohibit bribery of a foreign public official. on the offender.