Anti-Corruption 2026

Definitive global law guides offering comparative analysis from top-ranked lawyers

CHAMBERS GLOBAL PRACTICE GUIDES

Anti-Corruption 2026 Definitive global law guides offering comparative analysis from top-ranked lawyers

Contributing Editor Eric Bruce Freshfields US LLP

Global Practice Guides

Anti-Corruption Contributing Editor Eric Bruce Freshfields US LLP

2026

Chambers Global Practice Guides For more than 20 years, Chambers Global Guides have ranked lawyers and law firms across the world. Chambers now offer clients a new series of Global Practice Guides, which contain practical guidance on doing legal business in key jurisdictions. We use our knowledge of the world’s best lawyers to select leading law firms in each jurisdiction to write the ‘Law & Practice’ sections. In addition, the ‘Trends & Developments’ sections analyse trends and developments in local legal markets. Disclaimer: The information in this guide is provided for general reference only, not as specific legal advice. Views expressed by the authors are not necessarily the views of the law firms in which they practise. For specific legal advice, a lawyer should be consulted. Content Management Director Claire Oxborrow Content Manager Jonathan Mendelowitz Senior Content Reviewers Sally McGonigal, Ethne Withers, Deborah Sinclair and Stephen Dinkeldein Content Reviewers Vivienne Button, Lawrence Garrett, Sean Marshall, Marianne Page, Heather Palomino and Adrian Ciechacki Content Coordination Manager Nancy Tsang Senior Content Coordinators Carla Cagnina and Delicia Tasinda Content Coordinator Joanna Chivers Head of Production Jasper John Production Coordinator Genevieve Sibayan

Published by Chambers and Partners 165 Fleet Street London EC4A 2AE Tel +44 20 7606 8844 Fax +44 20 7831 5662 Web www.chambers.com

Contents

INTRODUCTION Contributed by Eric Bruce and Justin Simeone, Freshfields US LLP p.4

ITALY Law and Practice p.162 Contributed by Pistochini Avvocati Studio Legale Trends and Developments p.180 Contributed by Herbert Smith Freehills JAPAN Trends and Developments p.186 Contributed by Miura & Partners PORTUGAL Trends and Developments p.192 Contributed by Rogério Alves & Associados

AUSTRALIA Law and Practice p.8 Contributed by Clayton Utz Trends and Developments p.26 Contributed by Nyman Gibson Miralis BRAZIL Law and Practice p.33 Contributed by Zanin Martins Advogados Trends and Developments p.42 Contributed by Zanin Martins Advogados

SOUTH KOREA Law and Practice p.197 Contributed by Bae, Kim & Lee LLC

CHINA Law and Practice p.48 Contributed by Global Law Office

SPAIN Law and Practice p.215 Contributed by RODRIGUEZ RAMOS ABOGADOS Trends and Developments p.233 Contributed by RODRIGUEZ RAMOS ABOGADOS

DENMARK Law and Practice p.64 Contributed by Accura Advokatpartnerselskab Trends and Developments p.79 Contributed by Accura Advokatpartnerselskab

SWITZERLAND Law and Practice p.239

Contributed by Kellerhals Carrard Trends and Developments p.257 Contributed by Chabrier Avocats LLC UK Law and Practice p.264 Contributed by Peters & Peters Trends and Developments p.281 Contributed by Peters & Peters USA Law and Practice p.289 Contributed by Freshfields US LLP

FRANCE Law and Practice p.85 Contributed by Kiejman & Marembert

GREECE Law and Practice p.101

Contributed by Anagnostopoulos Trends and Developments p.112 Contributed by Ovvadias S. Namias Law Firm

HONG KONG Law and Practice p.119

Contributed by Debevoise & Plimpton Trends and Developments p.134 Contributed by Debevoise & Plimpton INDIA Law and Practice p.139 Contributed by AZB & Partners Trends and Developments p.156 Contributed by AZB & Partners

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INTRODUCTION

Contributed by: Eric Bruce and Justin Simeone, Freshfields US LLP

Freshfields US LLP has a white-collar defence team that is highly skilled in advising cross-border busi - nesses on anti-bribery and corruption risks arising anywhere in the world. The firm’s US white-collar partners, most of whom are former federal prosecu - tors, lead a team with more than 200 US lawyers working in close co-ordination with Freshfields’ of - fices in Europe, the Middle East and Asia. Freshfields helps clients respond to simultaneous inquiries from the US DOJ, the US SEC and CFTC, the UK Seri - ous Fraud Office, and other global regulators and

prosecutors, in connection with allegations of bribery and corruption. Freshfields’ lawyers develop multi- pronged defence strategies to navigate the varied ex - pectations of regulators and prosecutors around the globe. The firm regularly conducts international anti- bribery compliance programme reviews and provides due diligence and transactional advice for some of the world’s leading investors, banks and multi-na - tionals. Recent anti-corruption work has included se - curing the first declination with disgorgement under the DOJ’s Corporate Enforcement Policy.

Contributing Editor

Co-Author

Eric Bruce is a partner in Freshfields’ global investigations, white-collar criminal defence, and disputes practice. He represents boards of

Justin Simeone is a counsel in Freshfields’ global investigations, white-collar criminal defence, and disputes practice. He represents individuals and corporations in white-collar defence, regulatory

directors, multi-national corporations, and individual executives in complex white-collar criminal defence matters and corporate investigations. Eric is one of the relatively few lawyers in the USA who has tried an FCPA case to verdict and succeeded in getting all charges against his client dismissed. He previously served in the US Department of Justice as counsellor to the Attorney General and senior counsel to the Assistant Attorney General for the Criminal Division. Eric also spent more than ten years as a prosecutor in the US Attorney’s Office for the Southern District of New York.

investigations, and civil litigation matters. Justin has been a member of multiple trial teams, including a four-week jury trial involving criminal securities fraud charges in the Southern District of New York. In addition, he has experience leading and conducting white-collar investigations involving conduct in more than two dozen countries, including investigations by the DOJ, SEC, CFTC, and the World Bank spanning allegations of fraud, anti-competitive practices, securities violations, and Foreign Corrupt Practices Act violations.

Freshfields US LLP 700 13th Street NW 10th Floor Washington, DC 20005-3960 USA Tel: +1 202 777 4500 Email: eric.bruce@freshfields.com Web: www.freshfields.com/en

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INTRODUCTION Contributed by: Eric Bruce and Justin Simeone, Freshfields US LLP

Anti-Corruption: Global Enforcement at a Transitional Moment

issued new FCPA enforcement guidelines. The guide - lines instruct prosecutors to “limit undue burdens on American companies that operate abroad” and “tar - get enforcement actions against conduct that directly undermines US national interests”. They identify cer - tain types of cases that prosecutors should prioritise. The priorities include cases where the underlying mis - conduct deprived US companies of “fair access to compete and/or resulted in economic injury” or where the underlying conduct implicated the “most urgent threats to US national security... involving key infra - structure or assets”. They also include cases involving misconduct associated with cartels and transnational criminal organisations. Finally, the priorities include cases involving “individuals” and “serious miscon - duct”, such as “substantial bribe payments, proven and sophisticated efforts to conceal bribe payments, fraudulent conduct in furtherance of the bribery scheme, and efforts to obstruct justice”. Under the new enforcement approach, all new FCPA investiga - tions must be authorised by the Assistant Attorney General for the Criminal Division or a more senior DOJ official. During a 10 June 2025 speech, Acting Assistant Attor - ney General (AAG) of the DOJ Criminal Division Mat - thew Galeotti affirmed that the DOJ would continue to enforce the FCPA “firmly but fairly” by “bringing enforcement actions against conduct that directly undermines US national interests without losing sight of the burdens on American companies that operate globally”. Importantly, the FCPA remains binding law, including a statute of limitations that runs for five years for substantive bribery violations, six years for books- and-records violations, and often longer when there are extenuating circumstances, such as an ongoing conspiracy. Moreover, in the United States, many indi - vidual states have laws that can address similar mis - conduct. Indeed, in April 2025, the California Attor - ney General pledged to leverage state laws to further combat foreign bribery and corruption. Expanding multi-jurisdictional co-operation efforts The updated US approach also includes a greater focus on foreign enforcement actions, with co-opera - tion and co-ordination by US enforcement authorities.

We are proud to introduce the ninth edition of the Chambers Global Anti-Corruption Guide. The pur - pose of this Guide is to provide an overview of current anti-bribery and corruption laws in a wide range of countries, including insights into key legal standards, enforcement policies, and emerging trends, from the perspectives of leading practitioners in their respec - tive jurisdictions. The release of this Guide comes at a transitional moment for global anti-corruption enforcement. After decades of predictable enforcement goals, the United States this year affirmed its commitment to future enforcement efforts, but it has also signalled its intention to focus on new enforcement priorities. Meanwhile, after decades of maturing domestic anti- corruption enforcement institutions and capabili - ties, other countries have signalled their intention to expand enforcement efforts. Thus, for global practi - tioners, it is an especially important time to take stock of cross-jurisdictional legal and policy developments. Shifting US enforcement priorities The United States has long been a leader of global anti-corruption enforcement efforts through the For - eign Corrupt Practices Act (FCPA) and related laws. Upon taking office in January 2025, the Trump Admin - istration announced its intention to revisit the way that US enforcement bodies approach those laws and allo - cated their resources. On 10 February 2025, President Trump issued Execu - tive Order 14209, which directed the US Department of Justice (DOJ) to “restore proper bounds” of FCPA enforcement. The order imposed a 180-day pause on any new FCPA investigations, and it required the DOJ to undertake a comprehensive review of existing FCPA investigations. By doing so, the Administration sought to address “overexpansive and unpredictable” FCPA enforcement, which, the Order states, has historically harmed “American economic competitiveness and, therefore, national security”, by placing “undue bur - dens on American companies”. On 9 June 2025, DOJ Deputy Attorney General Todd Blanche lifted the pause on FCPA enforcement and

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INTRODUCTION Contributed by: Eric Bruce and Justin Simeone, Freshfields US LLP

Historically, US enforcement authorities have fre - quently partnered with foreign counterparts on multi- jurisdictional investigations and resolutions. Since the passage of the FCPA in 1977, US authorities have co-operated and co-ordinated with authorities in Brazil, France, Switzerland, and the United Kingdom, among others, on more than 100 enforcement actions. These efforts have included some of the largest anti- corruption resolutions in history, such as the USD3.9 billion 2020 Airbus resolution involving US, UK, and French authorities. Over time, US enforcement agen - cies have also participated in many staff exchanges, designed to help foreign authorities further develop enforcement capabilities. The revised US approach seeks to continue these efforts. The new guidelines direct US prosecutors to “consider the likelihood (or lack thereof) that an appro - priate foreign law enforcement authority is willing and able to investigate and prosecute the same alleged misconduct”. In the 10 June 2025 speech, Acting AAG Galeotti noted that the DOJ would deprioritise cases where foreign law enforcement authorities are willing and able to prosecute, but he stressed that the DOJ would not “hesitate” to co-operate and provide assis - tance in those cases. To reinforce that commitment, on 24 June 2025, Act - ing AAG Galeotti met with Nick Ephgrave, Director of the UK’s Serious Fraud Office, to discuss efforts to strengthen cross-border co-operation. The two lead - ers identified shared interests in continued informa - tion exchanges and operational collaborations, faster resolutions of complex, cross-border investigations, and stronger policies around voluntary self-disclosure and market integrity. Director Ephgrave called the meeting a “significant milestone for us as we continue to strengthen our international approach to fighting financial crime with key partners... [to] more effectively pursue criminals and deliver justice”. Potential new global enforcement leaders Although the United States has committed to future enforcement efforts, the new guidelines suggest that US enforcement authorities will deprioritise cases with less direct connections to US domestic interests, cre - ating opportunities for non-US enforcement authori - ties to take a more active role in those cases.

Since January 2025, other nations have begun to assert themselves as leaders in the anti-corruption space, both through individual actions and multilateral alliances. For example, on 20 March 2025, France, Switzerland, and the United Kingdom announced the formation of the International Anti-Corruption Pros - ecutorial Task Force to strengthen collective action, increase co-operation, and share best practices. While officials stated this was not a direct reaction to shifting US policy, the timing suggests a conscious effort to ensure continued momentum, with the found - ing statement explicitly committing each country’s enforcement agencies to standing “firm” in their fight against corruption. The Task Force includes a Lead - ers’ Group for strategic insight and a Working Group for case co-operation, which indicates a serious, co- ordinated effort to build a stronger enforcement bloc. Moreover, in recent months, other countries have also taken steps to independently strengthen their domestic anti-corruption frameworks. For example, in Australia, the National Anti-Corruption Commission reported significant activity, including 37 preliminary and 37 full anti-corruption investigations underway as of August 2025. In the United Kingdom, a new “Seri - ous Fraud Offence” came into force on 1 Septem - ber 2025. The offence applies to large organisations and holds them strictly liable for fraud committed by “associated persons” for the company’s benefit. This is a significant development, as it moves beyond the need for UK prosecutors to prove corporate intent in certain cases, thereby lowering the bar for prosecution and strengthening the UK’s enforcement capabilities. In addition, some countries are also taking proactive measures to strengthen anti-corruption measures in priority sectors. In China, for example, the State Administration for Market Regulation (SAMR) pub - lished new “Compliance Guidelines for Healthcare Companies to Prevent Commercial Bribery Risks” on 10 January 2025. Further, on 13 May 2025, 14 Chi - nese government agencies jointly issued a notice on “Rectifying Misconduct in the Field of Pharmaceutical Purchase and Sales and Medical Services in 2025”. This notice highlighted specific focus areas for regula - tory oversight, including public procurement, bidding, prescriptions, and project funding.

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INTRODUCTION Contributed by: Eric Bruce and Justin Simeone, Freshfields US LLP

Looking ahead to 2026 developments For global practitioners, these developments raise many questions about the trajectory of global enforce - ment over the coming years. The new US enforce - ment guidelines indicate a clear shift in priorities. As of the release of this Guide, however, there are many open questions about what the application of the new guidelines will look like in practice. Will the DOJ return to regularly negotiating resolutions with significant penalties? Will it devote greater attention to individual prosecutions? Will it simultaneously focus greater attention on non-US companies? In turn, the new US guidelines have the potential to generate spillover effects in other countries. As of the release of this Guide, there are also many remaining questions about the practical effects these changes will have in other countries. Will other countries con - tinue to strengthen their own anti-corruption laws?

Will non-US authorities continue to devote additional resources to their anti-corruption enforcement actions without support from US enforcement authorities? If US authorities devote greater attention to enforce - ment actions against non-US companies, will foreign enforcement authorities, in turn, devote greater atten - tion to enforcement against US companies? Amid these many questions, what remains clear is that the trajectory of global anti-corruption efforts will remain in a state of transition in the years ahead. The following chapters provide valuable insights from expert practitioners who closely follow these devel - opments within their respective jurisdictions. We sin - cerely thank the authors for their excellent contribu - tions. We hope that practitioners will continue to find this Guide to be a valuable resource for understand - ing and navigating anti-bribery-and-corruption laws around the world.

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AUSTRALIA

Australia

Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis Clayton Utz

Sydney

Tasmania

Contents 1. Legal Framework p.10 1.1 International Conventions p.10 1.2 National Legislation p.10 1.3 Guidelines for the Interpretation and Enforcement of National Legislation p.10 1.4 Recent Key Amendments to National Legislation p.11 2. Bribery and Corruption Elements p.11 2.1 Bribery p.11 2.2 Influence-Peddling p.13 2.3 Financial Record-Keeping p.13 2.4 Public Officials p.13 2.5 Intermediaries p.14 2.6 Lobbyists p.14 3. Scope of Application p.14 3.1 Limitation Period p.14 3.2 Geographical Reach of Applicable Legislation p.14 3.3 Corporate Liability p.15 4. Defences and Exceptions p.15 4.1 Defences p.15 4.2 Exceptions p.16 4.3 De Minimis Exceptions p.16 4.4 Exempt Sectors/Industries p.16 4.5 Safe Harbour or Amnesty Programme p.16 5. Penalties for Violations p.16 5.1 Penalties on Conviction p.16 5.2 Guidelines Applicable to the Assessment of Penalties p.16

6. Disclosure Processes p.17 6.1 Disclosure Obligations p.17 6.2 Voluntary Disclosure Incentives p.17 6.3 Self-Disclosure Procedures p.17

6.4 Protections Afforded to Whistle-Blowers p.17 6.5 Incentives Provided to Whistle-Blowers p.18 7. Enforcement Trends p.18 7.1 Enforcement p.18 7.2 Enforcement Bodies p.18 7.3 Jurisdictional Reach of Enforcement Bodies p.19 7.4 Discretion for Mitigation and Aggravation p.20 7.5 Recent Landmark Investigations or Decisions p.20 7.6 Level of Sanctions Imposed p.22 8. Compliance Expectations p.22 8.1 Compliance Obligations p.22 8.2 Compliance Guidelines and Best Practices p.23 8.3 Compliance Monitorships p.23 9. Assessment p.23 9.1 Assessment of the Applicable Enforced Legislation p.23 9.2 Likely Changes to the Applicable Legislation of the Enforcement Body p.25

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AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz

Clayton Utz is a leading independent full-service Australian law firm. Its commercial litigation team has 183 litigators operating across Sydney, Perth, Melbourne, Brisbane, Canberra and Darwin. The firm’s anti-bribery and corruption and investiga - tions specialists advise multinational and Australian companies on corporate fraud, bribery, corruption, facilitation payments, public and private corruption, antitrust, money laundering, and privileges and im - munities. The team is experienced in assessing risk and exposure under domestic and international anti- corruption laws. It assists clients with investigations

and remediation, and advises on managing various collateral issues, including whistle-blower provisions, media management, defamation and reputational is - sues, ASX disclosure rules, directors’ reputations and the risk of shareholder litigation. The team’s experi - ence includes advising on Australian Federal Police investigations into alleged bribery of foreign officials; being retained in relation to US investigations into al - leged breaches of the US Foreign Corrupt Practices Act within Australia, by subsidiaries; and acting for a British multinational whose employees allegedly con - spired to defraud tax authorities.

Authors

Tobin Meagher is a partner at Clayton Utz and specialises in commercial litigation, with particular expertise advising on anti-bribery and corruption and white-collar crime matters, including those involving the

Tessa Trend is a senior associate at Clayton Utz who specialises in anti- bribery and corruption, white-collar crime, sanctions, risk management and general litigation. In particular, she advises clients in relation to their

payment of secret commissions, bribery, conspiracy to defraud and fidelity insurance claims. He has advised clients on risks and responsibilities arising from anti-bribery legislation, acted for clients who are the subject of regulatory investigations, including by the AFP and ASIC, and has written and presented on emerging trends in anti-bribery law.

anti-bribery and corruption obligations, and investigates alleged bribery. She has advised on and conducted various investigations into whistle-blower allegations, including an in-country investigation in central Africa into whistle-blower allegations of fraud and senior employee misconduct, advised a multi- jurisdictional logistics company on allegations of an employee’s systemic fraud, and assisted an Australian resource company on an Australian Federal Police investigation into alleged foreign bribery.

David Benson is a partner at Clayton Utz. David has worked on some of the largest pieces of litigation to be conducted in Australia in the past decade, including acting for Volkswagen, Audi and Škoda in the

William Stefanidis is a senior associ - ate at Clayton Utz practising in litiga - tion and regulatory investigations with a particular focus on white-collar crime. He has acted for various companies, directors and managers in

diesel emissions regulatory and class actions, and acting for Yara International in the Oswal litigation, as well as working on significant cross-border projects involving anti-bribery, corruption and sanctions issues. David also has experience in conducting in-depth investigations in both Australia and foreign jurisdictions.

relation to investigations by the AFP, ASIC and foreign law enforcement agencies concerning suspected foreign bribery, corruption, unlawful conspiracy, insider trading, market manipulation and contraven - tions of companies and financial services law. William acted for liquidators in recovery litigation arising from one of Australia’s largest fraudulent tax avoidance schemes. He also advises on bribery and corruption risks and issues in relation to transactions and corporate management.

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AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz

Clayton Utz 1 Bligh Street Sydney NSW 2000 Australia

Tel: +61 2 9353 4000 Fax: +61 2 8220 6700 Email: tmeagher@claytonutz.com Web: www.claytonutz.com

1. Legal Framework 1.1 International Conventions

states and territories, rather than being criminalised by statute (as occurs in other states and territories). The common law bribery offence is constituted by the offering or receiving of an undue reward to or by any person in public office in order to influence that per - son’s behaviour in that office. 1.3 Guidelines for the Interpretation and Enforcement of National Legislation Unlike the United States and the United Kingdom, Australian government agencies have published lim - ited guidance on the interpretation and enforcement of the various anti-bribery and corruption laws. The Attorney-General’s Department (AGD) has devel - oped an online learning module on foreign bribery, which provides guidance on Australia’s anti-bribery policy, relevant laws, and their application. In August 2024, following amendments to the foreign bribery offence, the “Guidance on adequate procedures to prevent the commission of foreign bribery” (the “Ade - quate Procedures Guidance”) was also published, containing guidance that may be relevant to proof of defences by companies charged under the Criminal Code. The Bribery Prevention Network is a public-private partnership offering a free online resource portal designed to support Australian businesses in prevent - ing, detecting and addressing bribery and corruption risks both locally and overseas. The Australian Tax Office (ATO) has also published guidelines on under - standing and dealing with the bribery of Australian and foreign public officials.

Australia ratified the Organisation for Economic Co- operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in Inter - national Business Transactions (the “OECD Conven - tion”) in 1999. Australia is also a signatory to the Unit - ed Nations Convention against Corruption (UNCAC) of 2003. As a state party to both treaties, Australia is required to criminalise bribery of domestic and foreign public officials in the course of international business. 1.2 National Legislation Australia gives effect to its treaty obligations primarily through the Criminal Code Act 1995 (Cth) (Criminal Code). This is the federal legislation prohibiting the bribery of Commonwealth domestic and foreign pub - lic officials. Other relevant Commonwealth legislation includes the Corporations Act 2001 (Cth) (the “Cor - porations Act”) and the Proceeds of Crime Act 2002 (Cth) (POCA). All of Australia’s six states and two territories have also legislated against public sector and private sec - tor bribery, typically in their applicable crimes legisla - tion. While the laws differ between each state and territory, generally it is an offence to corruptly give or offer an inducement or reward to an agent for doing or not doing something regarding the affairs of the agent’s principal. It is also an offence to aid, abet, counsel, procure, solicit or incite the commission of these offences. Bribery and misconduct in public office also remain criminal offences under the common law of some

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AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz

blower Protections) Act 2019 (Cth): see 6.4 Protec- tions Afforded to Whistle-Blowers . Serious corruption is now also specifically targeted under Australia’s thematic sanctions framework. In December 2021, amendments to the Autonomous Sanctions Act 2011 (Cth) allowed the Commonwealth government to impose economic, financial and trade restrictions on individuals who have engaged in situ - ations of grave international concern, including those responsible for, or complicit in, serious corruption. Recommendations from recent inquiries into Aus - tralia’s sanctions regime, including by the Senate, focussed on how the regime can better align with existing anti-corruption measures, and better target Australians involved in designated actions, suggesting future reforms are possible. 2. Bribery and Corruption Elements 2.1 Bribery Domestic Bribery Section 141.1 (1) of the Criminal Code provides that it is an offence for a person to: dishonestly provide, offer or cause to be provided or offered a benefit to another person with the intention of influencing a Common - wealth public official in the exercise of their duties. “Benefit” is broadly defined to include any advantage, and is not limited to money or property, and “Com - monwealth public official” includes all employees of the Commonwealth and any Commonwealth author- ity. A similar but lesser offence applies to corrupting ben - efits given to a Commonwealth public official under Section 142.1 (1) of the Criminal Code. Corresponding offences apply to the receipt by Com - monwealth public officials of bribes or corrupting ben - efits: Sections 141.1 (3) and 142.1 (3). It is also an offence under Section 135.4 (7) to con - spire with another person with the intention of dishon - estly influencing a Commonwealth public official in the exercise of their duties.

Lastly, the Prosecution Policy of the Commonwealth (the “Prosecution Policy”) provides guidance as to how prosecution decisions are to be made by the Office of the Director of Public Prosecutions (CDPP) in relation to Commonwealth offences, including brib - ery offences. 1.4 Recent Key Amendments to National Legislation As discussed later in this chapter, on 8 September 2024, the Crimes Legislation Amendment (Combat - ting Foreign Bribery) Act 2024 (Cth) (the “Combatting Foreign Bribery Act”) came into force. It broadened the foreign bribery offence (including extending the offence to include candidates for office, and bribery conducted to obtain a personal advantage), replaced the requirement that a benefit or business advantage be “not legitimately due” with the concept of “improp - erly influencing” a foreign official, and introduced an offence of failing to prevent foreign bribery by an asso - ciate (see 2.1 Bribery ). It also amended the Income Tax Assessment Act 1997 (Cth) to preserve the exist - ing rule prohibiting a person from claiming a bribe to a foreign official as a deduction. Prior to this, there were several noteworthy amend- ments to Australia’s anti-bribery and corruption laws including: • in November 2015, Schedule 2 of the Crimes Leg - islation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) amended the foreign bribery offence to clarify that it is not necessary to prove: (a) an intention to bribe a particular foreign public official; or (b) that any business or business advantage was actually obtained or retained as a result of the bribery; and • in February 2016, two important new offences were introduced into the Criminal Code in relation to false dealings with accounting documents, to aid enforcement of bribery and corruption, and anti- money laundering, offences. Significant reforms to Australia’s whistle-blower pro - tection laws came into force in July 2019 pursuant to the Treasury Laws Amendment (Enhancing Whistle -

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AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz

Furthermore, various state and territory provisions prohibit bribery of state and territory public officials, which provisions are often the same as those prohibit - ing private sector bribery. Foreign Bribery The foreign bribery offence is contained in Section 70.2 (1) of the Criminal Code. As now amended, that section provides that it is an offence to provide, offer or cause to be provided or offered to another person a benefit with the intention of improperly influencing a foreign public official in order to obtain or retain busi - ness or a business or personal advantage. The offence captures bribes made to foreign public officials either directly or indirectly via an agent, rela - tive or business partner. “Foreign public official” is broadly defined and includes, but is not limited to, an employee, contrac - tor or official of a foreign government department or agency, a foreign government-controlled company or public international organisation. Since the Com - batting Foreign Bribery Act came into force, it also includes candidates for office. “Benefit” is also broad - ly defined to include any advantage. Previously, the elements of the foreign bribery offence were narrower and required, among other things, proof that the alleged illicit benefits were “not legiti - mately due” to the other person. Those elements will now only apply to conduct which occurred prior to 8 September 2024. Private Sector Bribery Commercial, or private sector, bribery is criminalised by state and territory legislation. Generally speaking, those laws prohibit the corrupt giving or offering of inducements or secret commissions to, or the receipt by, employees or agents of private or public compa - nies and individuals. Conduct is considered “corrupt” only if it is engaged in with the intention of influenc - ing the recipient to show favour, and the fact that the commission is secret raises the presumption that it was given corruptly.

An example of the state and territory provisions are those contained in the Crimes Act 1900 (NSW) (the “NSW Crimes Act”). Among other things: • Section 249B(1) prohibits an agent from corruptly receiving or soliciting (or corruptly agreeing to receive or solicit) any benefit from another person: (a) as an inducement, a reward, or on account of doing or not doing something, or showing or not showing favour to any person in relation to the affairs or business of the agent’s principal; or (b) if it would tend to influence the agent to show or not show favour to any person in relation to the affairs or business of the agent’s principal; • corresponding offences of giving or offering such benefits to an agent are imposed by Section 249B(2); • Section 249D prohibits a person from corruptly giving (or receiving) a secret benefit to (or from) another person for providing advice to a third party, with the intention of influencing the third party to either: (a) enter into a contract with the person giving the benefit; or (b) appoint the person giving the benefit to any office. The definition of “agent” is wide and includes employ - ees, while “benefit” includes money and any contin - gent benefit. Failure to Prevent Foreign Bribery Failure to prevent foreign bribery is an offence under Section 70.5A of the Criminal Code, which came into force on 8 September 2024. The offence stipulates that a body corporate is liable where an associate commits foreign bribery for the profit or gain of the body corporate. It does not apply if the body corpo - rate had in place adequate procedures designed to prevent the commission of the foreign bribery offence by its associates. The imposition of strict liability on companies for the conduct of an “associate”, which is defined broadly, will facilitate greater responsibility on Australian cor - porations for operations abroad, including for exam - ple:

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AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz

• where a subsidiary company commits foreign bribery (whether within or outside of Australia), pro - vided it does so for the profit or gain of the parent company; or • where bribery is committed by junior or mid-level personnel, or by external agents, even without the knowledge and approval of senior management of the company. Gifts and Hospitality Australian legislation does not expressly articulate the circumstances under which providing gifts and hos - pitality may amount to bribery. As the law currently stands, the giving of such benefits will only be unlaw - ful if done with the intention of improperly influencing a public official. In Australia, there is close scrutiny of the provision of gifts, entertainment and hospitality involving the public sector. As such, Australian public officials are usually subject to guidelines on the receipt of gifts and hospitality. In particular, each Commonwealth, state and territory government has its own public service with its own code of conduct, which are often sup - plemented by agency-specific codes of conduct. While it will depend on the applicable guidelines, gen - erally speaking, gifts of more than token value should be avoided. 2.2 Influence-Peddling There are no specific offences in Australia directed at influence peddling. However, given that the substan - tive bribery offences are broad in scope, depending on the facts and circumstances of a particular case, the exchange of influence in respect of decision-mak - ing for an undue advantage may constitute an offence. 2.3 Financial Record-Keeping False accounting offences are found in Part 10.9 of the Criminal Code, and criminalise intentional or reckless concealment of bribery by dealing with accounting documents. Section 286 of the Corporations Act also requires companies to retain written financial records for seven years that correctly record and explain their transac - tions, financial position and performance. Failure to

keep such financial records is a strict liability offence. In addition, it is an offence under Section 1307 for an employee or former employee of a company to falsify any books relating to the affairs of the company. The Crimes Acts of various states and territories also have similar false accounting offences, such as Section 83 (1)(a) of the Crimes Act 1958 (Vic), which makes it an offence to dishonestly falsify a document made for an accounting purpose. 2.4 Public Officials Domestic public officials also commit an offence by engaging in corrupt practices. For example, as referred to in 2.1 Bribery , Section 141.1 (3) of the Criminal Code provides that it is an offence for a Com - monwealth public official to: dishonestly ask, receive, obtain, or agree to receive or obtain a benefit for them - selves or another person with the intention that the exercise of their official duties will be influenced, or of inducing, fostering or sustaining such a belief. A similar but lesser offence applies if a Common - wealth public official receives a corrupting benefit (Section 142.1 (3)). A Commonwealth public official will also commit an offence against Section 142.2 of the Criminal Code for the abuse of public office. This provision will be breached if the official exercises influence, engages in conduct, or uses information obtained in their capac - ity as an official, with the intention of dishonestly obtaining a benefit for themselves or another person, or causing detriment to another person. The states and territories also legislate against public officers seeking or accepting bribes or other benefits to which they are not entitled. New South Wales is the only Australian jurisdiction that retains a specific offence of embezzlement (Part 4, Division 6, NSW Crimes Act). This offence crimi - nalises conduct in which an employee intentionally misappropriates property entrusted to them by their employer. In other Australian jurisdictions, embezzle - ment conduct is dealt with under provisions relating to fraud, theft or other property offences.

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AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz

2.5 Intermediaries There are no specific provisions concerning the com - mission of an offence through an intermediary. How - ever, the offences under the Criminal Code are struc - tured broadly so as to capture such offences. See 2.1 Bribery and 3.3 Corporate Liability . 2.6 Lobbyists Lobbying activities are regulated at the federal and state or territory level by the applicable Lobbying Codes of Conduct (the “Code of Conduct”) and Lob - byist Registers (the “Register”). At the national level, the AGD administers the Com - monwealth Code of Conduct, which includes require - ments to ensure contact between lobbyists and Commonwealth government representatives remain consistent with the public’s expectations in respect of integrity, transparency and honesty. Under the Commonwealth Code of Conduct, sub - ject to very limited exceptions, anyone who acts on behalf of third-party clients (regardless of sector) for the purpose of lobbying a Commonwealth govern - ment representative is considered a lobbyist and is therefore required to register as such. Government representatives are prohibited from engaging with lobbyists that are not registered on the Register. The Commonwealth’s Register is publicly searchable on the AGD’s website. However, unlike some States and Territories (includ - ing NSW and Western Australia), the Commonwealth Code of Conduct and Register are not enshrined in legislation, and therefore it is not compulsory for lobbyists to register. A Senate inquiry into access to Australian Parliament House by lobbyists and the ade - quacy of current transparency arrangements recom - mended in May 2024 that the Australian government introduce legislation to require all lobbyists to adhere to the Code of Conduct and maintain registration on the Register. Other recommendations included cap - turing a broader range of actors (eg, in-house lobby - ists), and independent administration of the Code of Conduct and Register. The States of Victoria, NSW, South Australia, and Queensland have also all recently strengthened, or

are in the process of considering strengthening, the regulation of lobbying (and related Ministerial conduct) in their respective states.

3. Scope of Application 3.1 Limitation Period

At general law, a prosecution for a criminal offence can be commenced at any time, unless a statute pro - vides otherwise. However, criminal proceedings may be stayed to prevent injustice to the defendant caused by unreasonable delay. There is no statute of limitations for prosecutions of the above-mentioned Commonwealth offences. That is because under the Crimes Act 1914 (Cth) (Crimes Act), there is no limitations period for the prosecu - tion of offences by individuals against a law of the Commonwealth where the maximum penalty exceeds six months’ imprisonment, or for the prosecution of offences by companies where the maximum penalty exceeds AUD49,500. 3.2 Geographical Reach of Applicable Legislation The Criminal Code offences referred to in 2.1 Bribery , 2.3 Financial Record-Keeping and 2.4 Public Offi - cials have broad extraterritorial reach. In relation to the foreign bribery offence, either some part of the conduct constituting the alleged offence must have occurred in Australia or, if the conduct occurred wholly outside Australia, the person must be an Australian citizen or resident, or a body corporate incorporated in Australia. In relation to the offence of bribing a Commonwealth public official, it does not matter if the conduct con - stituting the alleged offence, or the result of that con - duct, occurred entirely outside Australia. In relation to the state and territory-based offences, there must be some nexus between the state or terri - tory and the offence. For example, in NSW that nexus will be held to exist where the offence is committed: • wholly or partly in the state; or

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AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz

• wholly outside the state, but the offence has an effect in the state. Liability for a breach of directors’ duties under the Corporations Act will arise if the relevant person is a director or officer of an Australian-incorporated com - pany. If the relevant person is a director or officer of a foreign company, the Corporations Act will only have extraterritorial reach over that individual in limited cir - cumstances, including where the conduct occurred in connection with the foreign company carrying on business in Australia (Section 186). 3.3 Corporate Liability Under Australian law, a company, as a separate legal entity, can be convicted of bribery offences. Compa - nies and individuals can also be held liable for the same offence. The Criminal Code has specific provisions which address corporate criminal responsibility. Under these provisions, for a company to be criminally responsible for an offence, the physical and mental (or “fault”) ele - ments must be attributed to the company as follows: • the physical element is attributed if that element was committed by an employee, agent or officer of the company acting within the actual or apparent scope of that person’s employment or within their actual or apparent authority; and • the key fault element (intention) is attributed if the company expressly, tacitly or impliedly authorised or permitted the commission of the offence. The means by which that may be established include proving that a “high managerial” agent intentionally engaged in the relevant conduct or proving that a corporate culture existed that directed, encour - aged, tolerated, or led to non-compliance with the relevant provision. In addition to these general attribution rules, since 8 September 2024, companies have strict liability for failure to prevent foreign bribery by their associates unless they can prove a defence of adequate proce - dures: see 2.1 Bribery . In other Australian jurisdictions, generally speaking, a corporation may be found guilty of a criminal offence

either on the grounds of vicarious liability or on the basis that the person who committed the acts and had the requisite mental state was the directing mind and will of the company. In the M&A context, a successor entity will not be held liable for offences by the target entity that occurred prior to the merger or acquisition. However, if the transaction was effected by a share sale, the target entity will remain liable even after the acquisition. Two specific defences are available for the offence of foreign bribery under Section 70.2 (1) of the Criminal Code. Both are very narrow. The first defence (Section 70.3) is enlivened where the provision of the benefit is permitted or required by a written law of the place where the conduct occurred. The second defence (Section 70.4) is in respect of facilitation payments. If the value of the benefit was of a minor nature, and made to expedite or secure the performance of a “routine government action” of a minor nature, and a record of the details of the con - duct was created as soon as practicable, a defendant will have a good defence against liability. Routine gov - ernment action excludes a decision about the award - ing of new business, continuing existing business, or the terms of new or existing business. Rather, it is an action commonly performed by the foreign public offi - cial, such as granting permits or licences, processing government papers or providing access to utilities. While Australia had been considering removing the facilitation payment defence for some time, it was retained in the Combatting Foreign Bribery Act. None - theless, Australian authorities recommend avoiding such payments, given that they are often difficult to distinguish from bribes. 4. Defences and Exceptions 4.1 Defences In respect of the new failure to prevent foreign brib - ery offence, Section 70.5A(5) of the Criminal Code provides that this offence will not apply if the body corporate demonstrates it had adequate procedures

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AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz

in place to prevent the commission of the offence by an associate. The Adequate Procedures Guidance identifies what the Australian government considers “adequate procedures”. 4.2 Exceptions There are no exceptions to the above-mentioned defences, which are narrowly framed and only apply in specific situations. 4.3 De Minimis Exceptions The Commonwealth legislation does not provide any de minimis exceptions. However, the CDPP will have regard to whether alleged offences are trivial or of a merely technical nature (together with various other factors) when considering whether it is in the public interest to pursue prosecutions, pursuant to the Pros - ecution Policy. Meanwhile, such exceptions are found in some of the state and territory legislation. For example, Section 249I of the NSW Crimes Act enables the court to exer - cise its discretion to dismiss a case if the offence is of No sectors or industries are exempt from the offences referred to in 2.1 Bribery , 2.3 Financial Record-Keep- ing and 2.4 Public Officials . 4.5 Safe Harbour or Amnesty Programme There is no formal safe harbour or amnesty programme in Australia based on self-reporting or the existence of adequate compliance procedures and remediation efforts. However, see the discussion regarding the CDPP and AFP’s joint guidance on self-reporting in 7.4 Discretion for Mitigation and Aggravation . a trivial or merely technical nature. 4.4 Exempt Sectors/Industries

(b) a fine of AUD3.3 million, or both; or • for a company, a fine being the greatest of: (a) AUD33 million; (b) three times the value of any benefit that can be reasonably attributed to the bribe; or (c) where the value of the benefit cannot be deter - mined, 10% of the company’s annual turnover for the 12 months up to the end of the month in which the conduct constituting the offence occurred. For the false accounting provisions, the maximum penalty for intentional conduct is the same as above, while reckless conduct attracts a maximum penalty of half that of those offences. In addition to criminal penalties, any benefits obtained from foreign bribery may be forfeited to the Australian government under the POCA. The maximum penalties that may be imposed for pri - vate sector bribery vary between the states and ter - ritories. By way of example, in NSW, the maximum period of imprisonment for a bribery offence under Section 249B of the NSW Crimes Act is seven years. 5.2 Guidelines Applicable to the Assessment of Penalties Australia has complex legislated sentencing regimes which require each judge, exercising judicial discre - tion, to impose a sentence of severity appropriate to all the circumstances of the offence. This requires consideration of both aggravating and mitigating fac - tors relevant to the specific facts. The same sentenc - ing principles which apply to individuals will apply to a corporation. In particular, general deterrence is an important consideration for the sentencing court. However, Australia does not have the same prescrip - tive sentencing guidelines that exist in other jurisdic - tions (eg, the United Kingdom). There are no guide - lines specific to bribery and corruption offences.

5. Penalties for Violations 5.1 Penalties on Conviction

The maximum penalties on conviction for foreign or domestic bribery offences (and for companies, the failure to prevent offence) are significant: • for an individual: (a) ten years’ imprisonment; or

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