ADB/OECD Anti-Corruption Initiative for Asia and the Pacific

ISSN :
2074-3440 (online)
ISSN :
2074-3459 (print)
DOI :
10.1787/20743440
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This series assembles reports resulting from the Asian Development Bank/OECD Anti-Corruption Initiative for Asia and the Pacific.

 
The Criminalisation of Bribery in Asia and the Pacific

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The Criminalisation of Bribery in Asia and the Pacific You do not have access to this content

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Author(s):
OECD
Publication Date :
28 Feb 2011
Pages :
524
ISBN :
9789264097445 (PDF) ; 9789264097438 (print)
DOI :
10.1787/9789264097445-en

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Criminalisation is a key component of all international anti-corruption instruments. For example, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Anti-Bribery Convention) and the UN Convention against Corruption (UNCAC) both require States Parties to enact specific criminal offences on bribery. The Asian Development Bank (ADB)/Organisation for Economic Co-operation and Development (OECD) Anti-Corruption Initiative's Action Plan commits countries to ensure ‘the existence of legislation with dissuasive sanctions which effectively and actively combat the offence of bribery of public officials’.

However, criminalisation can be a challenging task, as experienced by many countries Party to the Anti-Bribery Convention. This report reviews the criminalisation of bribery offences in Asian countries under the UNCAC. Drawing on the experience of the OECD Anti-Bribery Convention's monitoring mechanism, the review focuses on each member's implementation of UNCAC Articles 15, 16 and 26 (domestic and foreign bribery by natural and legal persons). The review also identifies trends and challenges across the Asia-Pacific region.

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    Foreword
    Since 2006, the ADB/OECD Anti-Corruption Initiative for Asia and the Pacific has conducted Thematic Reviews of specific areas of its members' anticorruption efforts. Through the Reviews, the Initiative’s Steering Group takes stock of each member’s efforts, identifies challenges that have been encountered, and proposes recommendations for a way forward in order to overcome these difficulties. The reviews also identify cross-country trends and common obstacles, which in turn allow the Initiative to tailor its capacity building activities to address these challenges. The first Thematic Review in 2006 focused on members’ anti-corruption efforts in public procurement. A second Review in 2007 looked at extradition, mutual legal assistance and asset recovery in corruption cases.
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    Executive Summary
    Criminalisation is a key component of a comprehensive anti-corruption strategy and a vital complement to other efforts such as corruption-prevention and detection. Criminalisation thus figures prominently in international anticorruption instruments such as the Initiative's Anti-Corruption Action Plan, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Anti-Bribery Convention) and the UN Convention against Corruption. The purpose of this Thematic Review is to analyse the criminal legal and enforcement framework for fighting bribery among the Initiative’s members and to provide suggestions for improvement. The exercise covers the offences of bribery of domestic and foreign public officials by natural and legal persons, as well as aspects of investigating, enforcing and sanctioning these offences.
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    Introduction, Scope and Methodology
    Criminalisation is a key component of a comprehensive anti-corruption strategy. It deters individuals and officials from engaging in corrupt behaviour. It can also disgorge the profits of the crime and recompense the victim and the state. Criminalisation is thus a vital complement to other anti-corruption efforts such as prevention and detection.
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  • Expand / Collapse Hide / Show all Abstracts Overview of the Criminalisation of Bribery in Asia-Pacific

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      Elements of the Active and Passive Domestic Bribery Offences
      This section will begin by looking at two general issues regarding domestic bribery offences, namely, the existence of multiple and overlapping bribery offences, and the treatment of active bribery as abetting an official to commit passive bribery. The section will then consider each essential element of the domestic bribery offence as defined in UNCAC.
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      Bribery of foreign public officials
      While domestic bribery has long been recognised as a crime in almost all countries in the world, the crime of foreign bribery is of relatively recent vintage. The opportunity to commit foreign bribery has risen dramatically because globalisation has led to a significant increase in international economic activity. The crime is relevant to all members of the Initiative as foreign companies invest in these countries and thus may bribe their officials. It is also relevant as an increasing number of companies in Asia expand overseas and may therefore face risks of committing foreign bribery.
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      Defences
      This Thematic Review does not consider defences that are applicable generally to all criminal offences in a member jurisdiction, unless a general defence is particularly relevant to the crime of bribery. The Review also does not look at prosecutorial immunities accorded to officials such as heads of state, legislators, judicial officials etc. The importance and complexity of the issue of immunities would justify a separate study.
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      Liability of legal persons for bribery
      It is now settled that international standards require states to punish not only natural but also legal persons for bribery. The policy reason for this approach is clear. Bribes are very often given so that contracts and other advantages are awarded to companies. Put simply, individuals bribe, but companies benefit. A bribery offence must cover both aspects if it is to address the full mischief of the crime. Corporate liability is also necessary to encourage companies to adopt compliance policies that prevent natural persons who act on their behalf from committing bribery.
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        http://oecd.metastore.ingenta.com/content/2811011ec008.pdf
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      Jurisdiction to prosecute bribery
      A sufficiently broad jurisdictional base is important for prosecuting bribery offences effectively. UNCAC thus requires each State Party to provide jurisdiction over offences committed in its territory, on board vessels flying its flag, and on aircraft registered under it. A State Party must also prosecute an individual whom it refuses to extradite solely because the person is its national. Other jurisdictional bases are optional, such as offences committed by a State Party’s national (active nationality jurisdiction), offences committed against a State Party’s national (passive nationality jurisdiction), corruption-related money laundering, and offences committed against the State Party. By contrast, the OECD Convention only requires a Party to have territorial and national jurisdiction to prosecute foreign bribery.
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      Sanctions for bribery
      There is sometimes an imbalance in the sanctions between active and passive bribery. Over one-third of the Initiative’s members prescribe heavier maximum penalties for passive bribery than active bribery. On the contrary, no member punishes active bribery heavier than passive bribery. This reflects the traditional view that an official’s acceptance of a bribe is seen as a breach of trust and an abuse of power, and is thus more serious than bribe-giving. There is particular sympathy to this view in cases such as when a briber is a poor individual who must bribe to obtain basic public services. However, bribery is sometimes a crime of greed rather than need, such as when a business bribes an official to win a contract. It is questionable whether in these cases the briber is less culpable than the bribed official.
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      Tools for investigating bribery
      Effective criminalisation of bribery means more than just enacting bribery offences; there must also be tools for investigating and gathering evidence. UNCAC therefore contains many Articles on these matters. The monitoring process under the OECD Anti-Bribery Convention has also considered some of these issues. This Thematic Review therefore looked at the availability of some investigative tools that are of particular importance in bribery cases.
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      Enforcement of bribery offences
      Arguably, the most important aspect of the criminalisation of bribery is the enforcement of bribery offences. It is a vital first step for the Initiative’s members to have criminal offences that captures the full range of conduct of bribers and bribed officials. However, even perfect, loophole-free laws would be meaningless unless they are actually enforced. It is therefore important to examine the actual number of cases that are investigated, prosecuted and sanctioned, and any obstacles facing the prosecutorial and investigative authorities. The actual use of the investigative tools described above is also important. Some of the Initiative’s members may have laws authorising the use of certain investigative techniques but not the know-how or resources to deploy them in practice.
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      Conclusion and recommendations
      On the whole, the Initiative’s members have taken significant steps towards meeting international standards on the criminalisation of bribery, though notable gaps remain.
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      Annex 1. Excerpts from UNCAC
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      Annex 2. Summary of Maximum Sanctions for Domestic Bribery in the Initiative's Members
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  • Expand / Collapse Hide / Show all Abstracts Criminalisation of Bribery in the Initiative's 28 Member Jurisdictions

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      Australia
      Australia ratified the UNCAC and the OECD Anti-Bribery Convention in December 2005 and October 1999 respectively. It became a member of the FATF in 1990 and the APG in 1997. The Australian legal system is based on English common law. Its domestic bribery offences have not been externally reviewed. However, Australia’s foreign bribery offence and related enforcement issues have been examined extensively under the OECD Convention’s monitoring mechanism. To avoid duplication, this report will draw heavily on the OECD’s monitoring reports. It will also refer to FATF evaluation reports where appropriate.
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      Bangladesh
      Bangladesh acceded to the UNCAC in February 2007 and was a founding member of the APG in 1997. The Bangladeshi legal system is based on English common law. Bangladesh’s criminal bribery offences have not been externally reviewed.
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      Bhutan
      Bhutan signed UNCAC in 2005 but has not yet ratified the Convention as of April 2010. It is not a member of the APG. Bhutan’s legal system is based on British common law and Indian law. Its criminal bribery offences have not been externally reviewed.
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      Cambodia
      In 2007, Cambodia acceded to the UNCAC and signed the ASEAN Memorandum of Understanding for Preventing and Combating Corruption (SEA-PAC).It has been a member of the APG since 2004. The Cambodian legal system consists of mainly continental civil law elements but also includes legislative acts, royal decrees, sub-decrees, circulars, orders and customary law elements. Cambodia’s criminal bribery offences have not been externally reviewed.
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      P.R. China
      The People’s Republic of China’s (P.R. China) legal system is based on civil law. P.R. China ratified the UNCAC in January 2006. It has been a member of the APG since 1997. China’s criminal bribery offences have not been externally reviewed.
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        http://oecd.metastore.ingenta.com/content/2811011ec020.pdf
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      Cook Islands
      The Cook Islands is self-governing and in free association with New Zealand. It has full constitutional authority to enter into international arrangements and treaties. The Government of the Cook Islands can also request the New Zealand Government to extend ratification of international conventions to the Cook Islands. The Cook Islands has been a member of the APG since 2001. The Cook Islands’ legal system is based on English common law. It is not a State Party to UNCAC as of May 2010. Its criminal bribery offences have not been externally reviewed.
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        http://oecd.metastore.ingenta.com/content/2811011ec021.pdf
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      Fiji Islands
      Fiji’s legal system is based on the English common law system. It acceded to the UNCAC in May 2008. Fiji’s criminal bribery offences were externally reviewed under the UNCAC’s Pilot Review Mechanism. Fiji has been a member of the APG since 1998.
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      Hong Kong, China
      Hong Kong, China’s legal system is based on the English common law system. Its criminal bribery offences have not been externally reviewed. The UNCAC applies to Hong Kong, China by reason of P.R. China’s ratification. Hong Kong, China has been a member of the FATF and APG since 1991 and 1997 respectively.
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      India
      As of September 2010, India has signed but not yet ratified the UNCAC. It has been a member of the APG since 1998. India’s legal system is mainly based on statutory and common law. Its criminal bribery offences have not been externally reviewed.
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        http://oecd.metastore.ingenta.com/content/2811011ec024.pdf
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      Indonesia
      Indonesia’s legal system in based on civil (Roman-Dutch) law, with indigenous influences, and some Islamic (Sharia) law at the local level in certain regions. Indonesia signed and ratified the UNCAC in September 2006. It has been a member of the APG since 1999. As of September 2010, Indonesia has participated in the UNCAC Pilot Review Programme and its bribery offences have been externally reviewed.
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        http://oecd.metastore.ingenta.com/content/2811011ec025.pdf
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      Japan
      Japanese criminal law and procedure draw from French, German and (more recently) Anglo-American legal systems. As a Party to the OECD Anti- Bribery Convention, Japan’s offences for foreign bribery have been extensively reviewed. Its domestic bribery offences, however, have not been externally reviewed. As of August 2009, Japan has signed but has not ratified the UNCAC. Japan has been a member of the FATF and APG since 1990 and 1997 respectively. To avoid duplication, this report will rely heavily on the OECD’s monitoring reports regarding the foreign bribery offence and related enforcement issues. It will also refer to FATF/APG evaluation reports whenever appropriate.
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      Kazakhstan
      The Kazakh legal system has roots in Soviet and continental law. Kazakhstan has been a State Party to UNCAC since June 2008. It is a member of the Eurasian Group on Combating Money Laundering and Financing of Terrorism (EAG). Since 2005, Kazakhstan’s criminal bribery offences have been externally reviewed under the Monitoring Process of the OECD Anti- Corruption Network for Eastern Europe and Central Asia (ACN).  To avoid duplication, this report will refer extensively to the ACN’s reports on Kazakhstan.
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        http://oecd.metastore.ingenta.com/content/2811011ec027.pdf
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      Korea
      The Korean legal system derives primarily from continental civil law with some elements of Anglo-American law. Korea ratified the UNCAC and the OECD Anti-Bribery Convention in February 2008 and January 1999 respectively. Korea joined the APG in 1998 and the FATF in 2009. Korea’s domestic bribery offences have not been externally reviewed. However, its foreign bribery offence and related enforcement issues have been examined extensively under the OECD Convention’s monitoring mechanism. To avoid duplication, this report will draw heavily on the OECD’s monitoring reports. It will also refer to FATF/APG evaluation reports where appropriate.
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        http://oecd.metastore.ingenta.com/content/2811011ec028.pdf
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      Kyrgyzstan
      The Kyrgyz legal system has roots in Soviet and continental law. Kyrgyzstan has been a State Party to UNCAC since 16 September 2005. It is a member of the Eurasian Group on Combating Money Laundering and Financing of Terrorism (EAG). Since 2004, Kyrgyzstan’s criminal bribery offences have been externally reviewed under the Monitoring Process of the OECD Anti- Corruption Network for Eastern Europe and Central Asia (ACN).  To avoid duplication, this report will refer to the ACN’s monitoring reports and the EAG’s mutual evaluation reports whenever appropriate.
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        http://oecd.metastore.ingenta.com/content/2811011ec029.pdf
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      Macao, China
      Macao, China’s legal system is largely based on the continental civil law system. Its criminal bribery offences have not been externally reviewed. The UNCAC applies to Macao, China by reason of P.R. China’s ratification. Macao, China has been a member of the APG since 2001.
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        http://oecd.metastore.ingenta.com/content/2811011ec030.pdf
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      Malaysia
      Malaysia ratified the UNCAC in September 2008. It has been a member of the APG since 2000. Malaysia is also a member of the International Association of Anti-Corruption Agencies and the Asia-Pacific Economic Cooperation Anti-Corruption and Transparency Experts Task Force. The Malaysian legal system is based primarily on English common law. Its criminal bribery offences have not been externally reviewed.
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        http://oecd.metastore.ingenta.com/content/2811011ec031.pdf
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      Mongolia
      Mongolia ratified the UNCAC in January 2006. It has been a member of the APG since 2004. The Mongolian legal system is based primarily on the continental civil law system but with vestiges of the Soviet legal system. Its criminal bribery offences have not been externally reviewed.
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        http://oecd.metastore.ingenta.com/content/2811011ec032.pdf
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      Nepal
      As of September 2009, Nepal has signed but has not yet ratified the UNCAC. It has been a member of the APG since 2002. Nepal’s legal system is based on the English common law but with some Hindu legal concepts. Its criminal bribery offences have not been externally reviewed.
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        http://oecd.metastore.ingenta.com/content/2811011ec033.pdf
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      Pakistan
      Pakistan ratified the UNCAC in August 2007. It is a member of the APG. The Pakistani legal system is based primarily on English common law with some Islamic legal elements. Its criminal bribery offences have not been externally reviewed.
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        http://oecd.metastore.ingenta.com/content/2811011ec034.pdf
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      Palau
      The Republic of Palau (Palau) acceded to UNCAC in March 2009. It has been a member of the APG since 2002. Palau’s legal system is based on common law (as understood and applied in the United States) and customary laws. Its criminal bribery offences have not been externally reviewed.
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        http://oecd.metastore.ingenta.com/content/2811011ec035.pdf
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      Papua New Guinea
      Papua New Guinea (PNG) acceded to the UNCAC in July 2007. It has been a member of the APG since 2008. PNG’s legal system is based on English common law. Its criminal bribery offences have not been externally reviewed. However, PNG’s implementation of UNCAC (Chapters III and IV) will be reviewed in the first phase of the new UNCAC Review Mechanism.
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        http://oecd.metastore.ingenta.com/content/2811011ec036.pdf
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      Philippines
      The Philippine legal system is based on Spanish and Anglo-American law and thus has both civil and common law influences. The Philippines has been a State Party to UNCAC since 8 November 2006. Its criminal bribery offences were externally reviewed under the UNCAC’s Pilot Review Programme. The Philippines has been a member of the APG since 1997.
    • Click to Access: 
        http://oecd.metastore.ingenta.com/content/2811011ec037.pdf
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      • http://www.keepeek.com/Digital-Asset-Management/oecd/governance/the-criminalisation-of-bribery-in-asia-and-the-pacific/samoa_9789264097445-37-en
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      Samoa
      As of October 2010, Samoa has not signed nor acceded to UNCAC. It has been a member of the APG since 2000. Samoa’s legal system is based on English common law with some local customary law. Its criminal bribery offences have not been externally reviewed.
    • Click to Access: 
        http://oecd.metastore.ingenta.com/content/2811011ec038.pdf
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      • http://www.keepeek.com/Digital-Asset-Management/oecd/governance/the-criminalisation-of-bribery-in-asia-and-the-pacific/singapore_9789264097445-38-en
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      Singapore
      Singapore ratified the UNCAC in November 2009. It has been a member of the FATF and APG since 1992 and 1997 respectively. The Singaporean criminal legal system is based primarily on statute and case law interpreting the statute. Its criminal bribery offences have not been externally reviewed.
    • Click to Access: 
        http://oecd.metastore.ingenta.com/content/2811011ec039.pdf
      • PDF
      • http://www.keepeek.com/Digital-Asset-Management/oecd/governance/the-criminalisation-of-bribery-in-asia-and-the-pacific/sri-lanka_9789264097445-39-en
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      Sri Lanka
      Sri Lanka ratified the UNCAC in March 2004 and is a founding member of the APG since 1997. The Sri Lankan legal system is based on English common law. Its criminal bribery offences have not been externally reviewed.
    • Click to Access: 
        http://oecd.metastore.ingenta.com/content/2811011ec040.pdf
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      • http://www.keepeek.com/Digital-Asset-Management/oecd/governance/the-criminalisation-of-bribery-in-asia-and-the-pacific/thailand_9789264097445-40-en
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      Thailand
      The Thai legal system has civil law influences, e.g. it is based on a code system and judicial decisions are not binding. Thailand signed the UNCAC in 2003 but has yet to ratify the Convention. Its criminal bribery offences have not been externally reviewed. Thailand was a founding member of the APG in 1997.
    • Click to Access: 
        http://oecd.metastore.ingenta.com/content/2811011ec041.pdf
      • PDF
      • http://www.keepeek.com/Digital-Asset-Management/oecd/governance/the-criminalisation-of-bribery-in-asia-and-the-pacific/vanuatu_9789264097445-41-en
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      Vanuatu
      As of May 2009, Vanuatu has not yet signed nor acceded to UNCAC. It has been a member of the APG since 1999. Vanuatu has a unified legal system based on British common law and French civil law. Its criminal bribery offences have not been externally reviewed.
    • Click to Access: 
        http://oecd.metastore.ingenta.com/content/2811011ec042.pdf
      • PDF
      • http://www.keepeek.com/Digital-Asset-Management/oecd/governance/the-criminalisation-of-bribery-in-asia-and-the-pacific/viet-nam_9789264097445-42-en
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      Viet Nam
      Viet Nam ratified the UNCAC in August 2009. It has been a member of the APG since 2007. The Vietnamese legal system is based on the civil law and the communist legal system. Its criminal bribery offences have not been externally reviewed.
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