Anti-Corruption 2022

The new Anti-Corruption 2022 guide covers 25 jurisdictions. The latest guide discusses bribery, influence-peddling, financial record-keeping, offences relating to public officials, limitation periods, the geographical reach of legislation, corporate liability, defences and exceptions, safe harbour programmes, protection for whistle-blowers, and landmark investigations.

Last Updated: December 07, 2021


Authors



Bougartchev Moyne Associés AARPI was formed in January 2017, when Kiril Bougartchev and Emmanuel Moyne joined forces to create a law firm combining all the disciplines of business litigation, and specialising in criminal law. They are supported by a team of around ten lawyers. As litigators recognised throughout their profession, the founders and their team assist public and private enterprises such as banks, financial institutions, insurance companies and their executives as well as prominent figures in all disputes to which they are a party, whether involving white-collar crime, civil and commercial law or regulatory matters. With wide experience of emergency, complex, cross-border and multi-jurisdictional proceedings, Bougartchev Moyne Associés' lawyers assist their clients both in France and internationally, and with the benefit of privileged relations with counterpart law firms on all continents. Primary practice areas are white-collar crime, compliance, investigations, regulatory disputes, civil and commercial litigation, as well as crisis and reputational injury management.


Anti-corruption: the Global Picture

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

The Impact of the Pandemic

The last two years have obviously been marked by the COVID-19 pandemic, which still affects all countries in the world. Governments’ responses to the health crisis mostly focused on the purchase in the emergency of medical equipment, masks and vaccines, sometimes through intermediaries, as well as on the investment of massive public funds in order to deal with its economic and social consequences.

It turns out that the immediate need for medical supplies, combined with the simplification of procurement rules in view of such exceptional circumstances, increased the risks of undue influence over political response to the health crisis. This unprecedented situation had, therefore, an impact on the level of corruption in the world.

Although, from the beginning of the pandemic, numerous international bodies and NGOs that were engaged in the prevention of and the fight against corruption had drawn the attention of decision-makers to the issue of corruption in the health sector and sounded the alarm on the need to protect the rule of law and public integrity during the course of the health crisis.

New anti-corruption guidelines

Thus, in April 2020, the United Nations Office on Drugs and Crime (UNODC) published a policy guidance for the states' parties to the UN Convention Against Corruption, aiming to prevent corruption “in the allocation and distribution of emergency economic rescue packages in the context and aftermath of the Covid-19 pandemic”.

At the same time, the Organisation for Economic Co-operation and Development (OECD) sounded the alarm on these corruption risks and released, in May 2020, a note entitled “Tackling coronavirus”, reiterating the need for governments to respect international anti-corruption standards while implementing their crisis exit policies, as well as the need for companies to comply with anti-bribery regulations. In particular, it welcomed the initiatives taken by Ireland and Japan, which had issued guidelines at the beginning of the crisis. The central purchasing body of Ireland, the Office of Government Procurement, published an information note on good practices for contracting authorities during the COVID-19 pandemic. The Ministry of Internal Affairs and Communications of Japan issued “Measures to be taken for public procurement by local governments in response to COVID-19”.

As for the G20 Anti-Corruption Working Group, it published a “Compendium of Good Practices” providing an overview of corruption risks specifically arising from purchases of vaccines. In July 2020, the UNODC also published guidelines relating to this issue, entitled “Covid-19 vaccines and corruption risks: preventing corruption in the manufacture, allocation and distribution of vaccines”.

At the European level, in April 2020, the Group of States against Corruption (GRECO) issued guidelines entitled “Corruption Risks and Useful Legal References in the context of COVID-19”. It reiterated that, in a time of extraordinary circumstances, anti-corruption tools were more important than ever and that the need for regular and reliable information from public institutions was crucial. The report identified various typologies of corruption related to the COVID-19 pandemic, such as bribery in medical-related services or corruption in new-product research and development, including conflicts of interest. The GRECO also highlighted the importance of the effective protection of whistle-blowers in the health sector.

New anti-corruption players

In addition, the European Public Prosecutor’s Office (EPPO), responsible for investigating, prosecuting and bringing to judgment the perpetrators and accomplices of criminal offences affecting the financial interests of the European Union, such as active and passive bribery, started its activities on 1 June 2021. The EPPO may deal with any offences that would be perpetrated in the context of purchase agreements with vaccine manufacturers.

Corruption scandals

These warnings have not prevented the outbreak of corruption scandals related to the management of the pandemic. For instance, a German Member of Parliament is suspected of having promoted a mask-supplier to the Ministry of Health and of having collected a commission of EUR600,000, paid by the company for his intermediary activity. In Brazil, several members of the administration, allies of the President, are currently accused of having acted as intermediaries in the purchase of vaccines in exchange for bribes.

Derogatory rules

In this regard, France modified its legislation on the procurement equipment. On 7 December 2020, the Parliament adopted a “Law to accelerate and simplify public action”, which introduced the possibility, for public purchasers, of derogating from (i) advertising and (ii) tendering obligations on the grounds of "general interest". For construction contracts, it created the possibility of a derogation in the case of "exceptional circumstances" for a maximum period of 24 months. The threshold for exemption was increased from EUR90,000 to EUR100,000.

Warnings from NGOs

The NGO Transparency International immediately commented on this reform, warning that the urgency of the situation should not be used as a pretext for calling into question provisions essential to the transparency of public life. For the NGO, this law marks a step backwards in the transparency of the award of public contracts, which increases the risks of fraud, favouritism or bribery.

Furthermore, on the occasion of the release of its Corruption Perception Index for 2020, on 28 January 2021, Transparency International noted that “corruption and emergencies feed each other, creating a vicious cycle of mismanagement and deeper crisis”. The report highlighted the existence of a causal relationship between high levels of corruption and the difficult management of the health crisis: when robust anti-corruption mechanisms are not already in place, corruption is likely to cripple the effectiveness of emergency responses.

It calls for the implementation of concrete measures: setting aside resources to conduct spot checks on the quality of goods and services, encouraging civil society and journalists to monitor the procurement process and announcing rigorous ex-post auditions of transactions that took place during the emergency.

Conclusion

In the wave of these introductory remarks, which are inevitably made from a continental 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.

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

May practitioners find in this Guide helpful information to capture and manage better the legal risks arising from anti-corruption rules globally.

Authors



Bougartchev Moyne Associés AARPI was formed in January 2017, when Kiril Bougartchev and Emmanuel Moyne joined forces to create a law firm combining all the disciplines of business litigation, and specialising in criminal law. They are supported by a team of around ten lawyers. As litigators recognised throughout their profession, the founders and their team assist public and private enterprises such as banks, financial institutions, insurance companies and their executives as well as prominent figures in all disputes to which they are a party, whether involving white-collar crime, civil and commercial law or regulatory matters. With wide experience of emergency, complex, cross-border and multi-jurisdictional proceedings, Bougartchev Moyne Associés' lawyers assist their clients both in France and internationally, and with the benefit of privileged relations with counterpart law firms on all continents. Primary practice areas are white-collar crime, compliance, investigations, regulatory disputes, civil and commercial litigation, as well as crisis and reputational injury management.