INTRODUCTION Contributed by: Eric Bruce and Justin Simeone, Freshfields US LLP
important legislative and policy reforms in recent years. As noted above, in May 2023, the Euro - pean Commission proposed a broad directive aimed at combatting corruption, as part of a broader effort to harmonise procedures for fight - ing corruption across the EU member states. Since that time, countries inside and outside the European Union have implemented legislation and policy guidance to further bolster anti-brib - ery and corruption enforcement at the domes - tic level. As the authors of this Guide explain in greater detail within their individual chapters, there have been noteworthy developments in many countries. We briefly highlight just a few. Australia – Combatting Foreign Bribery Act In February 2024, the Australian Parliament passed the Combatting Foreign Bribery Act, marking a pivotal moment in Australia’s ongoing battle against global corruption. This legislation expands Australia’s anti-bribery and corruption regime in several ways. • First, the Act broadens the definition of “brib - ery” by revising definitions such as “advan - tage” and “associate”. It also clarifies that the “intent” to influence does not need to be directed at a specific official or to obtain a specific business advantage. • Second, the Act mandates that corporations take proactive steps to prevent bribery, and the failure to do so can result in conviction and significant penalties. More broadly, the Act increases penalties for corporations and individuals, including imprisonment of up to ten years for individuals and considerable fines for corporations. • Finally, the Act mandates review of operations and requires publication of clear guidance to assist corporations in implementing measures that prevent bribery and corruption.
In August 2024, the Attorney General published “Guidance on adequate procedures to prevent the commission of foreign bribery”. The Guide describes five main indicators of an effective anti-bribery compliance programme: 1. a culture of integrity within the corporation; 2. pro-compliance conduct by top-level man - agement; 3. a strong anti-bribery compliance function; 4. effective risk assessment; and 5. careful and proper use of third parties. United Kingdom – Economic Crime and Corporate Transparency Act In October 2023, the United Kingdom imple - mented the Economic Crime and Corporate Transparency Act (ECCTA), which aims to reform enforcement of economic crime and corporate liability. Among other important features, the ECCTA expands key definitions that are relevant to enforcement actions. • First, the Act broadens the scope of senior executives whose actions can be attributed to a company to establish criminal liability. Previously, only individuals representing the “direct mind and will” of a company could create liability; now, “senior managers” can also create liability. The Act broadly defines “senior managers” as employees who play a “significant role” in (i) making decisions about managing or organising the whole or a substantial part of a company; or (ii) actu - ally managing or organising the whole or a substantial part of a company. • Second, the Act adds a strict liability offence of “failure to prevent fraud”, including fraud by “associated persons,” who may include employees or agents who act on behalf of a company. The new offence only applies to large organisations, but it has broad extrater -
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