Comparing the Scope of Corporate Liability for Foreign Bribery in America and Australia

18 Pages Posted: 16 Sep 2021

See all articles by Dr Sara Golru

Dr Sara Golru

The University of Sydney, Faculty of Law

Date Written: December 2017

Abstract

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

Suggested Citation

Golru, Dr Sara, Comparing the Scope of Corporate Liability for Foreign Bribery in America and Australia (December 2017). Available at SSRN: https://ssrn.com/abstract=3905641 or http://dx.doi.org/10.2139/ssrn.3905641

Dr Sara Golru (Contact Author)

The University of Sydney, Faculty of Law ( email )

Faculty of Law Building, F10
Sydney, NSW
Australia

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