Synopsis -

This article examines the anti-bribery legislation of three countries, the United States, Canada, and the United Kingdom. The legislation of the three countries is compared and virtually all the criminal prosecutions are examined in some detail. There is also a detailed analysis of the extraterritorial effect of the legislation in each of the three countries. The article outlines the degree of international cooperation between governments enforcing this legislation as well as the extensive use of enforcement mechanisms such as whistleblowing and immunity programs. The article then goes on to look at the civil liability that invariably follows the criminal prosecutions driven by class actions based on misrepresentations under the securities laws and breach of fiduciary duties by directors. Finally, the article examines the consequences of anti-bribery prosecutions on arbitration proceedings and the non-enforcement of arbitration awards under the New York Convention where a breach of public policy is discovered. In an industry where virtually all agreements have arbitration clauses, this is no small matter.

Table of Contents:

I. Introduction -

For the past fifty years, the greatest threat to multinational corporations in terms of criminal liabilities fell under the competition laws and antitrust laws. In the last five years, that has changed. This initiative began in the United States when the Foreign Corrupt Practices Act (FCPA) was enacted in 1977. Serious enforcement activities only began five years ago, but the U.S. Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have certainly made up for lost time.