ebook img

Business ethics and anti-corruption PDF

140 Pages·2014·10.18 MB·English
by  
Save to my drive
Quick download
Download
Most books are stored in the elastic cloud where traffic is expensive. For this reason, we have a limit on daily download.

Preview Business ethics and anti-corruption

FFiinnaanncciiaall iinnssttiittuuttiioonnss EEnneerrggyy IInnffrraassttrruuccttuurree,, mmiinniinngg aanndd ccoommmmooddiittiieess TTrraannssppoorrtt TTeecchhnnoollooggyy aanndd iinnnnoovvaattiioonn LLiiffee sscciieenncceess aanndd hheeaalltthhccaarree Business ethics and anti-corruption Asia Pacific laws Norton Rose Fulbright Norton Rose Fulbright is a global legal practice. We provide the world’s pre-eminent corporations and fi nancial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia. Recognized for our industry focus, we are strong across all the key industry sectors: fi nancial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare. Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offi ces and to maintain that level of quality at every point of contact. Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members (‘the Norton Rose Fulbright members’) of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients. More than 50 locations, including Houston, New York, London, Toronto, Hong Kong, Singapore, Sydney, Johannesburg, Dubai. Attorney advertising References to ‘Norton Rose Fulbright’, ‘the law fi rm’, and ‘legal practice’ are to one or more of the Norton Rose Fulbright members or to one of their respective affi liates (together ‘Norton Rose Fulbright entity/entities’). The principal offi ce of Fulbright & Jaworski LLP in Texas is in Houston. Save that exclusively for the purposes of compliance with US bar rules, where James W. Repass will be responsible for the content of this publication, no individual who is a member, partner, shareholder, director, employee or consultant of, in or to any Norton Rose Fulbright entity (whether or not such individual is described as a ‘partner’) accepts or assumes responsibility, or has any liability, to any person in respect of this communication. Any reference to a partner or director is to a member, employee or consultant with equivalent standing and qualifi cations of the relevant Norton Rose Fulbright entity. The purpose of this communication is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of any Norton Rose Fulbright entity on the points of law discussed. You must take specifi c legal advice on any particular matter which concerns you. If you require any advice or further information, please speak to your usual contact at Norton Rose Fulbright. © Norton Rose Fulbright LLP NRF18261 06/14 (UK) Extracts may be copied provided their source is acknowledged. Business ethics and anti-corruption Asia Pacific laws A Norton Rose Fulbright guide June 2014 Preface Preface We are pleased to present the latest edition of the Norton The global anti-corruption movement continues to gain Rose Fulbright Guide to Business ethics and anti-corruption momentum and key jurisdictions in Asia Pacific are joining Asia Pacific laws. The rapid and extensive developments in the campaign against corruption. It is of crucial importance the anti-corruption landscape in the Asia Pacific region and for multinational companies to have a strong grasp of the elsewhere in the world, as well as the growing importance fundamental features of the local laws in each jurisdiction of certain jurisdictions, have rendered the publication of in which they operate, as well as the extraterritorial this updated edition both timely and necessary. application of enforcement regimes around the world. The purpose of this Guide is to provide legal, governance, We look forward to supporting you as you navigate the risk and compliance practitioners who are interested in anti-corruption regimes in your business dealings in this the region with an overview of anti-corruption regimes dynamic, entrepreneurial and exciting region. and related laws in the Asia Pacific context. The sheer diversity within Asia Pacific presents those who have Wilson Ang regional responsibility with both complex and unique Partner, Singapore Norton Rose Fulbright (Asia) LLP challenges. We hope this Guide goes some way towards meeting those needs. This new edition of the Guide has an expanded coverage which includes 19 chapters on Australia, Bangladesh, Brunei Darussalam, Cambodia, China, Hong Kong, India, Indonesia, Japan, Macau, Malaysia, Myanmar, New Zealand, the Philippines, Singapore, South Korea, Taiwan, Thailand and Vietnam. The Guide also examines, within an anti-corruption context, interlinked issues on anti-money laundering, whistleblowing, extortion, data privacy, disclosure and privilege in each of the jurisdictions surveyed. Norton Rose Fulbright – June 2014 05 Business ethics and anti-corruption – Asia Pacific laws Acknowledgements The chapters on Australia, China, Hong Kong, Indonesia, Singapore and Thailand have been provided by Norton Rose Fulbright. We gratefully acknowledge the support and assistance of the law firms which have kindly contributed to the chapters on Bangladesh, Brunei Darussalam, Cambodia, India, Japan, Macau, Malaysia, Myanmar, New Zealand, the Philippines, South Korea, Taiwan and Vietnam. These contributing firms are identified at the start of each chapter and further contact details on the contributors are given at the end of each chapter and the Guide. 06 Norton Rose Fulbright – June 2014 Contents Introduction 09 Australia 15 Bangladesh 25 Brunei Darussalam 29 Cambodia 35 China 41 Hong Kong 49 India 57 Indonesia 65 Japan 69 Macau 73 Malaysia 79 Myanmar 85 New Zealand 91 Philippines 97 Singapore 103 South Korea 109 Taiwan 115 Thailand 121 Vietnam 127 Contacts 133 Contributing law firms 136 Business ethics and anti-corruption – Asia Pacific laws Abbreviations A number of abbreviations have been used throughout the guide. For ease of reference, they are as follows: Institution/Convention/Legislation Abbreviation Asia Pacific Group on Money Laundering APG Asian Development Bank ADB Bribe Payers Index 2011 BPI Corruption Perceptions Index 2011 CPI United States Department of Justice DOJ Dodd-Frank Wall Street Reform & Consumer Protection Act 2010 Dodd-Frank Act Financial Action Task Force FATF Foreign Corrupt Practices Act FCPA OECD Convention on ‘Combating Bribery of Foreign Public Officials’ OECD Anti-Bribery Convention United States Securities and Exchange Commission SEC United Kingdom Serious Fraud Office SFO Transparency International TI United Nations Convention against Corruption UNCAC 08 Norton Rose Fulbright – June 2014 Introduction Introduction For ease of jurisdictional comparison, each chapter in on Combating Bribery of Foreign Public Officials in the Guide dealing with a specific jurisdiction is organised International Business Transactions 1997 (OECD Anti- according to the following sections: Bribery Convention) which requires signatory countries to criminalise the bribery of foreign public officials. The OECD • Transparency International (TI) rankings Anti-Bribery Convention was signed on 17 December 1997 and entered into force on 15 February 1999. There are 34 • International anti-corruption conventions and inter- OECD Member countries and seven non-member countries governmental organisations which have adopted this Convention. • Key anti-corruption laws The OECD Anti-Bribery Convention requires that signatory countries enact implementing national legislation that • Features of bribery offences makes bribery and attempted bribery of foreign public officials a crime, prohibits off-the-books accounts, false • Compliance defence and mitigation documents and other actions aimed to hide bribery, imposes effective, proportionate and dissuasive penalties, • Facilitation payments and requires mutual legal assistance to be rendered to other parties in their investigations and proceedings. The OECD • Gifts and entertainment has established a peer review system whereby a Working Group is tasked to monitor each adhering country’s • Corporate liability for the acts of intermediaries compliance with the OECD Anti-Bribery Convention and to assess the steps the country has taken to implement its • Liability of individual directors and officers requirements in national law. • Penalties Another important international framework agreement, the United Nations Convention against Corruption (UNCAC), • Enforcement agencies was adopted by the United Nations General Assembly on 31 October 2003 and came into force on 14 December • Anti-money laundering laws 2005. It has a much higher rate of participation with 140 signatories. The UNCAC requires participating states to • Whistleblowing implement legislation prohibiting the bribery of public officials as well as persons in the private business sector. • Data privacy It has a much broader scope than the OECD Anti-Bribery Convention and includes, among others, anti-money • Disclosure and privilege laundering provisions. In respect of the monetary penalties that may be imposed in Within the regional context, the Asian Development Bank the event of violation of the laws, we have sought to provide (ADB) and the OECD developed an initiative to combat the figure in the local currency as well as in US dollars for corruption in Asia Pacific in 2001. The initiative led to ease of comparison. The exchange rate we applied was that the development of an action plan of legally non-binding prevailing on 1 May 2014. principles and standards towards policy reform which participating governments of the Asia Pacific region voluntarily committed to implement in order to combat International anti-corruption regimes corruption and bribery. This came to be known as the ADB/ OECD Anti-Corruption Initiative for Asia and the Pacific. One of the most important international anti-corruption A steering group was established in accordance with the framework agreements is the Organisation for Economic initiative to review the progress achieved by regional Cooperation and Development (OECD) Convention participating countries in implementing the action plan. Norton Rose Fulbright – June 2014 09 Business ethics and anti-corruption – Asia Pacific laws US and UK anti-bribery laws national securities exchange or are required to submit annual filings to the SEC and their employees, officers, The United States and United Kingdom anti-bribery laws directors, and agents; “domestic concerns” or individual US merit specific consideration in the Asia Pacific context due residents or nationals and companies organised under the to their broad extraterritorial reach and profound impact on laws of the US, and their employees, officers, directors, and business conduct taking place around the world. agents; and to companies or individuals using US mail or other means of US interstate commerce. The US Foreign Corrupt Practices Act (FCPA) was passed in 1977 in the wake of the Watergate scandal and subsequent The FCPA prohibits corrupt payments made directly or federal investigations uncovering illicit practices in both indirectly through intermediaries. The FCPA targets public government and private businesses, including payments bribery and does not cover commercial bribery, although to domestic and foreign government officials. The FCPA such conduct may violate other US statutes, such as the contains two types of provisions: (a) anti-bribery provisions Travel Act. which prohibit covered individuals and entities from offering or making corrupt payments to non-US government The UK Bribery Act 2010, which came into force on 1 July officials to obtain or retain business or a business 2011, was passed to replace a patchwork of antiquated advantage; and (b) accounting and internal control anti-bribery laws in the aftermath of OECD criticism and a provisions, which require companies to keep books and scandal involving the sale of arms to Saudi Arabia. The UK records that accurately and fairly reflect the transactions Bribery Act has four separate offences. Section 1 prohibits of the corporation and to devise and maintain a robust a person offering, promising or giving a financial or other internal controls program. advantage to another person directly, or through a third party to (a) induce or reward the improper performance The FCPA provides two affirmative defences and one by that other person of a relevant function, or (b) where exception. First, it is a defence if the relevant payment the person knows or believes that the acceptance of the was lawful under the written laws of the non-US country. advantage offered, promised or given in itself constitutes This is a very narrow defence, because it is interpreted to the improper performance of a relevant function or activity. require an affirmative statement in the laws of the non-US Section 2 prohibits a person from requesting, agreeing country that the type of payment contemplated would be to receive or accepting a financial or other advantage lawful. Second, it is a defence to provide things of value in intending that, in consequence, a relevant function or respect of reasonable and bona fide expenditures directly activity should be performed improperly. Section 6 creates relating to the promotion, demonstration, or explanation a “standalone” offence for bribery of a foreign public of a company’s products or services or the execution or official. Section 7 provides for a strict liability corporate performance of a contract with a non-US government offence of failure by the “relevant commercial organisation official or instrumentality thereof. As for the exception, to prevent bribery by persons associated with it” to obtain “facilitating payments”, or small amounts paid to a non-US or retain business or to obtain or retain an advantage in the government official to induce that, or another, official to conduct of business for that commercial organisation. In perform or expedite a routine, non-discretionary act that he addition to the above, an ancillary offence under section 14 or she would otherwise be required to perform in the course states that if any of the general offences under sections 1, of his or her ordinary duties, do not violate the FCPA. 2 and 6, of bribing another person, being bribed or bribing Examples include obtaining permits or licences, providing a foreign public official, is committed by a body corporate, police protection, mail pick-up and delivery, or providing any “senior officer” of that body corporate would be guilty phone service, power and water supply. of the offence if it is proved to have been committed with his or her consent or connivance. A “senior officer” is The FCPA allows for both criminal and civil liability, and defined to include a director, manager, secretary or other is enforced by the Department of Justice (DOJ) and the similar officer. Securities and Exchange Commission (SEC). The FCPA applies to: “issuers” who either have stock listed on a US 10 Norton Rose Fulbright – June 2014

Description:
context, interlinked issues on anti-money laundering, whistleblowing .. On a Federal level, under the Criminal Code, bribery in the public sector can be .. it to compel the production of documents and compel a person to attend an
See more

The list of books you might like

Most books are stored in the elastic cloud where traffic is expensive. For this reason, we have a limit on daily download.