Tag Archives: TI-UK

Spain’s New Corporate Compliance Defense: What Impact Will It Have?

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In the world of foreign anti-bribery law, there has been much discussion (including on this blog – see here and here) about whether to adopt a so-called “compliance defense” that would allow corporate defendants to escape criminal liability for bribery committed by their agents if the corporation can show that it had an adequate compliance system in place. Some countries’ foreign bribery laws – most notably the US Foreign Corrupt Practices Act – do not have such a defense; others – most notably the UK Bribery Act – do (though the UK Act combines the defense with strict corporate liability not only for the acts of employees, but also of other agents). Spain recently joined the latter group of countries with an amendment to its criminal law (Article 31 bis) that went into effect last month (see summaries here and here). That amendment (which covers not only Spain’s foreign bribery offense, but also domestic bribery and other corporate criminal offenses) allows the corporation to avoid criminal liability if it can establish that, prior to the commission of the crime, the board of directors implemented an adequate compliance program that meets certain requirements laid out in the statute.

Proponents of the compliance defense cheered. And a report on the new law from the law firm Miller & Chevalier predicted that this legal change “should encourage companies doing business in Spain to adopt a rigorous compliance program”—a claim that presumably would also apply to Spanish companies doing business abroad, given that the provisions also apply to Spain’s foreign bribery offense.

I’m not so sure, for reasons I’ve discussed before, but I do think the change in the Spanish law might provide an interesting opportunity to test the hypothesis. Continue reading →

Guest Post: The UK Should Fight Corruption Using “Unexplained Wealth Orders”

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Nick Maxwell, Head of Advocacy and Research at Transparency International-United Kingdom, contributes the following guest post:

UK Prime Minister David Cameron has made the fight against global corruption a high priority for his government, declaring that corruption is the cancer that is at the root of many of the world’s problems. But as much as we should applaud the UK’s efforts to support anticorruption measures and good governance abroad, it is equally important that the UK ensure that it is not a safe haven for the proceeds of corruption stolen throughout the world. Yet here the UK has fallen short: We have only seen limited asset restraint and recovery against the proceeds of corruption, especially against those currently associated to power. While estimates of total extent of the problem vary, it is generally agreed that large amounts of unexplained suspicious wealth enter the UK each year and are invested in the British financial system, in property, in luxury goods or in other areas of the economy. And despite the fact that UK law enforcement has the necessary expertise on this issue, the rate of asset recovery by UK agencies of the proceeds of grand corruption is undeniably very low compared to the scale of the problem.

Given the scale of the problem and the inadequacy of the government’s response to date, Transparency International’s UK chapter (TI-UK) established a taskforce of experts to review the legislation in place to deter grand corruption and recover stolen assets that have made their way into or through the UK. The results of the taskforce’s deliberations were published last month as a discussion paper entitled Empowering the UK to recover corrupt assets: New approaches to illicit enrichment and asset recovery; the paper sets out a new proposal for UK law enforcement: the use of an Unexplained Wealth Order (UWO), which would allow UK law enforcement to start proactively questioning suspicious unexplained wealth associated with foreign public officials, and to start civil recovery proceedings against the relevant assets.

Continue reading →