Prohibiting Bribery of Foreign Public Officials - Implications for Corporate Criminal Liability

Abstract:     
In the late 1990s, it was announced that Australia would introduce legislation to respond to an OECD Convention for criminalizing bribery of foreign public officials. This was part of a coordinated international OECD initiative. The US had already addressed such issues two decades earlier under the Foreign Corrupt Practices Act of 1977.

This paper discusses the rationales for prohibiting bribery of foreign public officials and the scope of the draft Australian provisions, which were designed to enforce the OECD Convention. The paper specifically focuses on the broader implications of the bribery offence for corporate criminal liability. It discusses when payment of a bribe by an employee or officer to a foreign public official may result in corporate criminal liability, and the mechanisms through which corporations might protect themselves from such liability.

The issues raised in this paper are discussed in more detail in a later companion article, "Corporate Criminal Liability in Australia: An Evolving Governance Technique?", Journal of Business Law, p. 1, 2003 (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=429220), which analyzes the contours of the Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 against the backdrop of general corporate criminal liability.

Number of Pages in PDF File: 10

Keywords: Corporate governance, OECD Convention, corporate crime, bribery, criminal liability, organizational blameworthiness, corporate culture, privilege against self-incrimination

JEL Classification: G34, G38, J38, K22, K33, K40, K42, M14

Accepted Paper Series