Anti-Corruption 2023

Anti-corruption: the Global Picture

We are truly delighted to introduce the sixth edition of the Chambers Global Anti-Corruption Guide. The purpose of this Guide is to provide an overview of the current state of anti-bribery and anti-corruption law in 24 countries, as well as offer valuable insights into enforcement policies, trends and potential developments in this area, based on the opinion of leading lawyers in their respective countries.

The 2021 OECD Anti-Bribery Recommendation: a new reference norm

On 26 November 2021, the OECD Council ‒ comprising the 44 countries party to the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the “Anti-Bribery Convention”) ‒ published the 2021 OECD Anti-Bribery Recommendation (the “2021 Anti-Bribery Recommendation”), which supersedes the 2009 Recommendation in order to reflect the development of key topics that have emerged or significantly evolved in the anti-corruption field during the past ten years.

The 2021 Anti-Bribery Recommendation encourages countries to:

• strengthen the enforcement of foreign bribery laws, including through proactive detection and investigation of foreign bribery, more effective international co-operation among law enforcement authorities and co-operation in multi-jurisdictional cases;
• implement extensive provisions to ensure effective protection of whistle-blowers in the public and private sectors; and
• incentivise companies to develop compliance programmes to prevent and detect foreign bribery.

Even though it is still too early to evaluate the impact of the COVID-19 pandemic on the levels of corruption throughout the world, 2021‒22 is marked by the release of key reports assessing the enforcement of the Anti-Bribery Convention.

The OECD Phase 4 report on France

As regards France, the OECD Working Group on Bribery published its Phase 4 report on 9 December 2021 and welcomed the significant increase in the number of investigations opened in the country since Phase 3 in October 2012. It nonetheless emphasised the relatively low number of cases resolved in light of the country’s economic situation and trade profile, as well as the number of foreign bribery allegations reported in the media. In December 2022, France is expected to submit an oral report on its implementation of some recommendations considered essential in maintaining the progress made since Phase 3 ‒ for example, the increase of the resources available to investigators, prosecutors and trial judges. A written report on the implementation of all recommendations will be submitted in December 2023. The follow-up reports will be publicly available.

The Transparency International 2022 Exporting Corruption report

In October 2022, Transparency International released the 14th edition of its Exporting Corruption report. This independent review of the foreign bribery performance of 47 leading export countries encompasses 43 of the 44 parties to the Anti-Bribery Convention, as well as China, Hong Kong SAR, India and Singapore. The report intends to complement the OECD Working Group on Bribery’s monitoring process.

Transparency International raises significant concerns about an overall negative trend throughout a four-year period (2018‒21), while the current global environment only compounds the declining commitment to foreign bribery enforcement in view of the war in Ukraine and climate-related natural disasters. Thus, only two of the 47 countries (United States and Switzerland) are now in the category of “active enforcement”, compared with four countries in 2020 and seven countries in 2018. In 2022, the United Kingdom and Israel dropped from “active” to “moderate enforcement”. Since 2020, nine countries have dropped an enforcement level whereas only two countries moved up a level. China and India, which still have no legislation criminalising foreign bribery, remain in the “little to no enforcement” category.

Therefore, to the authors of the report, “the need for enforcement is stronger than ever to avoid a race to the bottom in the use of bribery in the contest for foreign markets”.

European co-operation initiatives

The transnational nature of several corruption issues underlines the need to strengthen international co-operation, as advocated by the 2021 Anti-Bribery Recommendation. Recent European initiatives were designed with this in mind.

In December 2021, the Italian National Anti-Corruption Authority (ANAC) released a study entitled Using Innovative Tools and Technologies to Prevent and Detect Corruption, featuring contributions from members of the Network of Corruption Prevention Authorities (an international network of corruption prevention authorities). According to ANAC President Giuseppe Busia, the study provides practical examples of best practice in the use of information and communication technologies for the prevention of corruption, thereby shedding light on how anti-corruption agencies around the world approach innovation. 

Besides, in the aftermath of the European Colloquium on Ethics and Transparency, organised in Paris on 9 June 2022 in the context of the French Presidency of the Council of the European Union, public ethics authorities from 11 EU member states (Austria, Belgium, Croatia, Czech Republic, France, Italy, Lithuania, Malta, Spain, Romania and Slovenia) published a joint declaration and created the European Public Ethics Network. They intend to adopt a founding charter in the coming months and meet in autumn 2022 to discuss the issue of mobility between the public and private sectors.

The first steps of the European Public Prosecutor's Office

In March 2022, the European Public Prosecutor's Office (EPPO) released its inaugural annual report following the first seven months of its operational activity. The previous year witnessed the opening of 576 investigations, of which 298 were new cases initiated by the EPPO and 278 were cases initially reported by national authorities. Four per cent of the investigations conducted concerned cases of active and passive corruption of public officials. At this stage, the EPPO’s jurisdiction remains limited to protecting the financial interests of the EU, which explains why the EPPO is not in charge of a recent highly publicised case concerning the alleged bribery of a European parliamentarian by an Arab state.

The report shows that the level of detection of fraud affecting the EU’s financial interests varies significantly between EU member states. In this respect, it is interesting to note that out of 576 cases opened in 2021, 369 (a significant portion) were opened in the five EU member states ranked by Transparency International as the worst performers in foreign bribery enforcement (Romania, Bulgaria, Czech Republic, Slovakia and Italy). The EPPO could therefore be called upon to prioritise the investigation of countries that fail in the prosecution of probity offences. The EPPO could thus contribute to rectifying these shortcomings, especially if its scope is extended in the future.

In October 2022, the EPPO announced that it had opened an investigation relating to the procurement of COVID-19 vaccines in the EU, without providing any detail at this stage. The handling of this case should be followed closely by civil society.

Conclusion

In the wake of these introductory remarks, which are inevitably made from a European perspective, the expert contributions in the following chapters constitute an essential resource, as they give precise insights about what is going on in each country in many different corners of the world.

We express our deep gratitude to all authors for their valuable work.

May practitioners find helpful information in this Guide that will make it easier to identify, understand and manage the legal risks arising from anti-corruption rules around the world.