The OECD opened a Public Consultation on foreign bribery and liability of the legal person in from 23 August – 3 November 2016. The role of the legal person within the context of bribery and foreign bribery, in particular, has been brought into particular focus by the sheer number of US DPAs and more recently, with the UK SFO.

The issue of the liability of the legal person is a crucial, yet vexed, one. In all jurisdictions, the criminal law evolved as the response of society and the State to the actions of individuals. In the modern world, in relation to corruption cases in particular, it is, however, very often the legal person (typically the company or corporation) which drives, and benefits from, corrupt activity.

Jurisdictions which traditionally have, or have introduced, criminal liability for legal persons have had to consider how to make that liability workable and, in particular, how to attribute corrupt acts to the legal entity. Meanwhile, those with no liability for legal persons or with only administrative or civil liability available have had to consider whether to go down the path of criminalization. Whichever basis of liability is chosen, no anti-corruption strategy will have a real chance of success unless the liability of legal persons is capable of enforcement.

Recognising the challenges of holding legal entities to account (models of attribution, lengthy investigations etc.), the OECD Working Group on Bribery opened the public consultation to invite practitioners to ‘share their experiences with existing systems as well as their perspectives on how such systems could be improve’.

Given our anti-corruption expertise and on-going engagement on the issue, Amicus Legal Consultants submitted its observations addressing: lack of investigative tools, mutual legal assistance, issues relating to successor liability and the reluctance of reliance on indirect (or circumstantial) evidence in a number of jurisdictions.

The OECD Consultation documents can be accessed at: http://www.oecd.org/corruption/public-consultation-foreign-bribery-liability-legal-persons.htm

For the composite responses submitted: http://www.oecd.org/daf/anti-bribery/Public-Consultation-Liability-Legal-Persons-Responses.pdf

 

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