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.

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.

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.

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.

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.

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.

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.

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.

On the whole, the Initiative’s members have taken significant steps towards meeting international standards on the criminalisation of bribery, though notable gaps remain.