Comparing the Scope of Corporate Liability for Foreign Bribery in America and Australia
18 Pages Posted: 16 Sep 2021
Date Written: December 2017
Although the details of the foreign bribery laws differ between the two jurisdictions, the scope of a corporation’s liability for foreign bribery is largely similar under US and Australian law. In both jurisdictions, the offence involves three crucial elements including the provision of a benefit or something of value, the need for a business purpose and the intent to influence a foreign official. Both US and Australian law also provide similar affirmative defences and exceptions to the offence, namely where the conduct is lawful under the written laws of the foreign official’s country and the conduct constitutes a facilitating payment. Moreover, both jurisdictions extend the scope of a corporation’s liability to encompass corrupt conduct committed by its employees and, in practice, corporations that implement an effective compliance program may be able to avoid or, at the very least, lessen their liability for bribes committed by their employees. Finally, the scope of a corporation’s liability for foreign bribery under both US and Australian law is sufficiently broad to incorporate mischaracterizing a bribe in their books or failing to maintain accurate books that record the bribe. Ultimately, companies that engage in foreign bribery simultaneously ‘undermine their own long-term interests and the best interests of their investors’.
Keywords: corporate law; foreign bribery; comparative law; white collar crime
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