India passes amendments to 1988 Prevention of Corruption Act

On July 24, 2018 the Indian Parliament passed the Prevention of Corruption (Amendment) Bill 2018 (POCA).(1)  The POCA amends the 1988 Prevention of Corruption Act (PCA).  The POCA was necessary to align the existing law with the United Nations Convention against Corruption (UNCAC).(7)  A previous attempt to amend the PCA in 2013 failed.(2)  For the first time, the law now includes a bribery provision for commercial organizations.  

Background

The Criminal Law (Amendment) Ordinance, 1944(3) was the first law in India that dealt with corruption.  The Prevention of Corruption Act, 1947(4) was enacted to supplement the provisions of the Indian Penal Code of 1860.(5)  Eventually it was determined that the scope of the 1947 law was too narrow and as a result the PCA was enacted in 1988.(6)  The PCA replaced the 1947 Act, widened the scope of the definition of public servant and increased the potential penalty assessments.  An unsuccessful attempt was made in 2013 to amend the PCA in order to align it with the UNCAC(7), as a result of India's ratification of the UNCAC in May of 2011. 

Key Changes within the 2018 POCA   

The 2018 POCA amends various provisions of the 1988 PCA:

  • The giving of a bribe is now a direct offence - however, if you are compelled to give a bribe you will not be charged with the crime if you report it to the authorities within seven (7) days;
  • Includes provisions for both bribing a public servant and the offering of a bribe by a commercial organization (including commercial organizations is NEW);
  • Allows for the prosecution of former public officials - previously only currently serving public officials could be prosecuted;
  • Removes the provision that protected a person offering a bribe from prosecution based on statements they make during a corruption trial;
  • Provides more stringent punishments for bribery - for both the giver and taker (including up to seven years of imprisonment or a fine or both for the person offering a bribe); and
  • Redefines criminal misconduct to only cover misappropriation of property and possession of disproportionate assets.

Key New Text from the 2018 POCA

  • "8. (1) Any person who gives or promises to give an undue advantage to another person or persons, with intention - (i) to induce a public servant to perform improperly a public duty; or (ii) to reward such public servant for the improper performance of public duty; shall be punishable with imprisonment for a term which may extend to seven years or with a fine or with both..."
  • "9. (1) Where an offence under this Act has been committed by a commercial organisation, such organisation shall be punishable with fine, if any person associated with such commercial organisation gives or promises to give any undue advantage to a public servant intending - (a) to obtain or retain business for such commercial organisation; or (b) to obtain or retain an advantage in the conduct of business for such commercial organisation: Provided that it shall be a defence for the commercial organisation to prove that it had in place adequate procedures in compliance of such guidelines as may be prescribed to prevent persons associated with it from undertaking such conduct."
  • "Commercial organisation - means (i) a body which is incorporated in India and which carries on a business, whether in India or outside India; (ii) any other body which is incorporated outside India and which carries on a business, or part of a business, in any part of India; (iii) a partnership firm or any association of persons formed in India and which carries on a business whether in India or outside India; or (iv) any other partnership or association of persons which is formed outside India and which carries on a business, or part of a business, in any part of India..."
  • "(c) a person is said to be associated with the commercial organisation, if such person performs services for or on behalf of the commercial organisation irrespective of any promise to give or giving of any undue advantage which constitutes an offence..."

For more information Contact GCSG's anti-bribery and corruption professionals.

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French Anti-Corruption Agency Publishes Guidelines, Part I

On December 22, 2017 the new French Anti-Corruption Agency (created as a result of the "Sapin II Law") published the final form of its anti-corruption recommendations.  The AFA is tasked with developing recommendations designed to help public and private entities within France to prevent and detect acts of corruption. 

The recommendations take into consideration best practices found within international standards, are non-binding, and are applicable throughout the French Republic.  While they are non-binding it is expected that the recommendations will be considered as part of any enforcement activity.  Any company that has a legal entity in France should be familiar with the Sapin II Law and with these recommendations. 

The recommendations affect:

  • All companies, including subsidiaries of foreign companies, when the subsidiaries are established in the territory of the French Republic
  • All of the following legal entities, regardless of the place of their activities, including abroad:
    • Public limited companies, simplified joint-stock companies, limited liability companies, professional civil companies
  • All legal entities "under private or public law, regardless of their size, social form, sector of activity, turnover or the size of their workforce."     
  • All non-corporate entities 

The recommendations are intended to help:

  • Organization's adopt operating rules to enhance their competitiveness
  • Protect organizations from damage to their reputation
  • Companies subject to article 17 of the 2016 Sapin II law fulfill their obligations
  • Guard against penalties that may be imposed by foreign authorities for failing to prevent or detect corruption

Key sections of the recommendations include:

  • Leadership commitment
  • Code of Conduct
  • Internal Warning System
  • Risk Mapping
  • Third-Party Evaluation
  • Accounting controls
  • Training system
  • Internal control and evaluation system

In the coming days, GCSG will post additional articles that discuss in more detail each of the key sections mentioned above. 

Contact GCSG professionals at: info@globalcompliancesg.com with any questions or for more information on how we can assist you with your compliance program.   

Definition(s)

Corruption is defined (in the recommendations) "as the act by which a person in a particular public or private office solicits/proposes or agrees/assigns, a gift, an offer or a promise, with a view to accomplishing, delaying or omitting to 'perform an act coming in, directly or indirectly, in the course of his duties."

Key Link(s)

FCPA Legislation Introduced to Allow Individuals and Companies to take Legal Action

On June 9, 2016 U.S. Representative Ed Perlmutter (CO-07) introduced legislation (H.R. 5438) that would expand the Foreign Corrupt Practices Act (FCPA).  Enforcement actions under the FCPA may only be brought by the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC). The legislation introduced by Rep. Perlmutter, would also give individuals and companies the ability to take legal action against corporations who are violating the anti-bribery provisions of the FCPA.

In his press release, Rep. Perlmutter said, "This legislation helps encourage foreign companies to play by the rules or be brought to court.  Most importantly, it is a way to level the playing field and help U.S. companies compete abroad."

Key Amended Text:

"Authorized Plaintiffs. - Any person that violates subsection (a) shall be liable in an action brought in accordance with this subsection in any court of competent jurisdiction to any issuer that is subject to section 30A of the Securities and Exchange Act of 1934, domestic concern that is subject to this section, or other person that is a United States person, that is damaged by the violation of subsection (a) of this section, for damages caused to such issuer, domestic concern, or other person by the violation."

Key Link(s):

 

Singapore probing complex transactions involving 'many shell companies'

"SINGAPORE authorities are probing "complex and layered transactions" with "cross border elements" involving many shell companies...it is widely accepted that the case involves the probe into the money trail of Malaysia's troubled state-backed firm."

Article Link: "Singapore probing complex transactions involving 'many shell companies' in 1MDB case"

Source Credit: The Business Times

ISO 37001 Anti-bribery Management Systems - Gets Vote of Approval

On April 14, 2016 the International Organization for Standardization (ISO) announced the draft version of the new ISO 37001 Anti-Bribery Management Systems (ABMS) standard received a 91% vote of confidence. 

The ABMS "is designed to help organizations implement effective measures to prevent and address bribery, and instill a culture of honesty, transparency and integrity."   

The standard is intended to be used by small to large public, private, or voluntary sector companies.  The ABMS standard includes a few basic principles such as:

  • Adopting an anti-bribery policy
  • Appointing a person to oversee anti-bribery compliance
  • Training
  • Risk assessments and due diligence on projects and business associates
  • Implementing financial and commercial controls
  • Instituting reporting and investigation procedures

The standard is expected to be published in late 2016.

Key Links: