Anti-Bribery laws in Common Law Jurisdictions Anti-Bribery Laws in Common Law Jurisdictions Stuart H. Deming Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016 © Oxford University Press 2014 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, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-in-Publication Data Deming, Stuart H., 1951- author. Anti-bribery laws in common law jurisdictions / Stuart H. Deming. p. cm. Includes bibliographical references and index. ISBN 978-0-19-973771-0 ((hardback) : alk. paper) 1. Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997) 2. Bribery. 3. Misconduct in office. 4. Common law—Commonwealth countries. I. Title. K5216.A41997D46 2014 345'.02323—dc23 2013045532 9 8 7 6 5 4 3 2 1 Printed in the United States of America on acid-free paper Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com This book is dedicated to my mother, Anne G. Deming Table of Contents Acknowledgments xix Preface xxi Overview 1 A. The New International Norms 2 B. The Focal Point of the New International Norms 3 C. The OECD Convention 4 D. The OECD Convention and Common Law Jurisdictions 6 E. Comparing the Anti-Bribery Legal Regimes in Common Law Jurisdictions 6 1 . The OECD Convention 9 1.0 Overview 9 1.1 The Anti-Bribery Provisions 10 1.2 Jurisdiction 11 1.2.1 Territorial Jurisdiction 11 1.2.2 Nationality Jurisdiction 11 1.3 Elements of the Offense 12 1.3.1 Any Person 12 1.3.1.1 Juridical Entities 12 1.3.1.2 Standard of Liability for Juridical Entities 13 1.3.2 Intentionally 13 1.3.3 Offer, Promise, or Give 13 1.3.3.1 Whether Indirectly or through Intermediaries 13 1.3.3.2 Attempt 13 1.3.3.3 Complicit Conduct 14 1.3.3.4 Conspiracy 14 1.3.4 Any Undue Pecuniary or Other Advantage 14 1.3.5 Foreign Public Official 14 vii viii Table of Contents 1.3.5.1 Parastatals 15 1.3.5.2 Public International Organizations 16 1.3.5.3 Political Party, Political Party Official, or Candidate for Public Office 16 1.3.6 In Order That the Official Act or Refrain from Acting in Relation to the Performance of Official Duties 16 1.3.7 In Order to Obtain or Retain Business or Other Improper Advantage 17 1.4 Defenses 17 1.4.1 Statute of Limitations 17 1.4.2 Local Written Law 17 1.4.3 Bona Fide and Reasonable Business Expenditures 18 1.4.4 Facilitation Payments 18 1.4.5 Duress 18 1.5 Sanctions 18 1.5.1 Criminal Sanctions 18 1.5.2 Additional Civil or Administrative Sanctions 19 1.6 Money Laundering 19 1.7 Tax Deductibility 20 1.8 Accounting and Record-Keeping 20 2 . Australia 23 2.0 Overview 23 2.1 The Anti-Bribery Legislation 24 2.2 Jurisdiction 26 2.2.1 Territorial Jurisdiction 26 2.2.2 Nationality Jurisdiction 27 2.3 Elements of the Offense 27 2.3.1 Any Person 27 2.3.1.1 Juridical Entities 27 2.3.1.2 Standard of Liability for Juridical Entities 28 2.3.2 Intentionally 30 2.3.3 Offer, Promise, or Give 30 2.3.3.1 Whether Indirectly or through Intermediaries 31 2.3.3.2 Attempt 32 2.3.3.3 Complicit Conduct 32 2.3.3.4 Conspiracy 33 2.3.4 Any Undue Pecuniary or Other Advantage 34 2.3.5 Foreign Public Official 34 2.3.5.1 Parastatals 35 2.3.5.2 Public International Organizations 36
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