v. reports on enforcement in oecd convention countries - Begroting

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Recommendations: Introduce criminal liability for legal persons. Amend the provisions on statutes of limitations to extend the limitations period and remove the requirement that it runs until the fi nal appeal. Improve the whistleblower protection system to encourage reporting of bribery and create a central supervising body for cases of corruption. JAPAN MODERATE ENFORCEMENT: Seven cases and no known investigations. Share of world exports is 4.5 per cent. Foreign bribery cases or investigations: In January 2011 the Fisheries Agency ordered a suspension of operations of four Japanese fi shing companies in connection with alleged bribes paid to Russian border offi cials to circumvent a fi shing quota. 237 The agency took this action after tax authorities in Sapporo and Sendai reportedly imposed back taxes on the four companies for allegedly concealing combined taxable income of about 500 million yen (US $5.9 million) over a three-year period ending in 2009 by disguising payments to Russian guards as legitimate expenses. The agriculture, forestry and fi sheries minister was quoted as saying he would refer the case to the Public Prosecutors Offi ce and Economy, Trade and Industry Ministry to investigate whether there had been an infringement of the Unfair Competition Law. 238 No new information is available on the Bridgestone investigation referenced in last year’s report. In connection with that case, in the US in 2009 a Japanese former general manager of Bridgestone pleaded guilty in a district court to conspiring to violate the FCPA. 239 According to the plea agreement, the former formal general manager authorised or participated in corrupt payments by local agents of the company’s US subsidiary to employees of state-owned customers in Latin America (Argentina, Brazil, Ecuador, Mexico and Venezuela), especially in Mexico, in the period 2004 – 2007. The company’s other regional subsidiaries were also allegedly involved. 240 In other jurisdictions, in April 2011 the Japanese engineering and construction company JGC Corporation agreed to pay a criminal penalty of nearly US $219 million and agreed to a deferred prosecution agreement to settle US Department of Justice FCPA charges. 241 The company had been part of the TSKJ consortium that allegedly paid bribes to the Nigerian government to secure contracts in the period 1994 - 2004 for the expansion of the Bonny Island liquefi ed natural gas plant in the Niger Delta (see report on US and section VI on Nigeria). 242 In relation to the same case, it was also reported in February 2011 that JGC Corp had reached a settlement with the Nigerian government calling for payment of US $28.5 million. 243 In addition, the US company Halliburton reported in an SEC fi ling in 2004 that another Japanese company was retained to pay bribes to low-level offi cials in Nigeria in the above-mentioned TSKJ Consortium scandal. 244 Another Japanese company, Sojitz Group, is the subject of a foreign-bribery-related criminal investigation in the US, following a civil suit brought against the company in 2009 by the state-owned Aluminum Bahrain BSC. 245 Bahraini prosecutors are also investigating the Sojitz case. 246 In November 2010 several Russian government offi cials were reportedly arrested for extorting bribes for state 237 Daily Yomiuri Online, 19 January 2011, “‚Bribe-paying‘ fi shing fi rms to stay ashore”, http://www.yomiuri.co.jp/dy/national/T110118004897.htm 238 Ibid. 239 United States District Court, Southern District of Texas, Houston Division, Plea Agreement, 10 December 2008, http://www.justice.gov/atr/cases/f243700/243716.htm 240 OECD Working Group on Bribery, October 2009, “Typologies on the Role of Intermediaries in International Business Transactions” http://www.oecd.org/dataoecd/40/17/43879503.pdf 241 Bloomberg, 6 April 2011, “JGC to Pay $218.8 Million to Resolve Foreign Bribery Charges” http://www.bloomberg.com/news/2011-04-06/jgc-agrees-to-pay-218-8-million-to-resolve-u-s-claims-of-nigerian-bribes.html ; 242 Bloomberg Business Week, 7 December 2010, “Nigeria in Talks With Technip, Eni and JGC Over Bribe Case”, http://www.businessweek.com/news/2010-12-07/nigeria-in-talks-with-technip-eni-and-jgc-over-bribe-case.html ; Bloomberg, 6 April 2011, “JGC to Pay $218.8 Million to Resolve Foreign Bribery Charges” http://www.bloomberg.com/news/2011-04-06/jgc-agrees-to-pay-218-8-million-to-resolve-u-s-claims-of-nigerian-bribes.html ; FCPA Blog, 12 July 2010, “JGC Confi rms DOJ Investigation” http://www.fcpablog.com/blog/2010/7/12/jgc-confi rms-doj-investigation.html 243 Templars, Firm News, 1 February 2011, http://www.templars-law.com/pages/posts/jgc-corp-reaches-us-28-million-settlement- 112.php 244 OECD Working Group on Bribery, October 2009, “Typologies on the Role of Intermediaries in International Business Transactions”, http://www.oecd.org/dataoecd/40/17/43879503.pdf ; Reuters, 11 March 2011, “Lawyer pleads guilty in Nigeria bribery case” http://www.google.com/hostednews/afp/article/ALeqM5j3tsPWuyUrRceWpQZAxtkvK8zPHw?docId=CNG.3dd45eb241c8502e6bdf77a 2885cc060.aa1 245 Bloomberg, 28 May 2010, “Sojitz Group Faces Criminal Probe of Possible Bribes to Aluminum Bahrain” http://www.bloomberg.com/news/2010-05-28/sojitz-group-faces-criminal-probe-of-possible-bribes-to-aluminum-bahrain.html 246 Wall Street Journal, 4 June 2009, “Bahrain Kickback Investigation Widens” http://online.wsj.com/article/SB124405834546582249.html 46 Transparency International
contracts from companies, allegedly including the Japanese technology company Toshiba Corp. and other medical equipment companies. 247 Domestic bribery by foreign companies: None known. Inadequacies in legal framework: There are several inadequacies. There is a lack of criminal liability for corporations in Japan. The fi ve-year statute of limitations is too short for effective enforcement of the OECD Convention. Inadequacies in enforcement system: Inadequacies in the enforcement system include insuffi cient resources; a lack of co-ordination between investigators and prosecutors; and a lack of training for investigators and prosecutors regarding foreign bribery. The available sanctions do not appear to be effective deterrents to foreign bribery in practice, and there have been diffi culties in obtaining mutual legal assistance from other countries. Legal framework and enforcement system regarding subsidiaries, agents and other intermediaries: There has been a failure to hold parent companies responsible for subsidiaries, agents and joint ventures, and it is unclear whether territorial jurisdiction is suffi cient to cover such cases. The involvement of intermediaries in foreign bribery is not expressly mentioned in Japanese law, but authorities have asserted that domestic bribery case law shows that intermediaries are indeed covered. However, instances of failed intermediation are not considered a crime in Japan. 248 Japanese law has not been tested in foreign bribery cases. See the Bridgestone case mentioned above. Recent developments: No signifi cant developments. Recommendations: Introduce criminal liability and nationality jurisdiction for corporations. Ensure the provisions on territorial jurisdiction are suffi cient to hold parent companies liable for bribery committed by subsidiaries, agents, joint ventures or other intermediaries. Introduce longer statutes of limitation. KOREA (SOUTH) MODERATE ENFORCEMENT: Seventeen cases, no investigations. Share of world exports is 2.9 per cent. Foreign bribery cases or investigations: Of the 17 foreign bribery cases in South Korea, the last was concluded in 2008. There were no investigations under way in South Korea in 2010. However, in May 2011, there were news <strong>reports</strong> quoting the Incheon Prosecutor’s Offi ce saying that a South Korean employed by an air cargo company was being prosecuted for foreign bribery for paying bribes to a Chinese public offi cial who heads the South Korean branch of a Chinese airline company. It was also reported that the Chinese offi cial had been arrested for taking bribes and that there were eight more suspects in the case. The South Korean suspects had reportedly been using a slush fund in the period May 2006 to January 2011. The Prosecutor is reported to have said that it was the fi rst time the South Korean Foreign Bribery Act was being applied. 249 Domestic bribery by foreign companies: In October 2010 there were news <strong>reports</strong> that South Korean security authorities were looking into allegations that Swedish company Saab AB had paid off a local research institute in exchange for classifi ed information regarding a military project to develop new fi ghter jets. 250 Two employees of Diageo Korea, a subsidiary of the UK alcoholic beverages company Diageo Plc., were reportedly convicted of making improper payments to a customs offi cial in South Korea. 251 247 Bloomberg, 29 November 2010, “Kremlin Offi cial, Ex-Minister Arrested in Toshiba Bribe Probe”, http://www.businessweek.com/news/2010-11-29/kremlin-offi cial-ex-minister-arrested-in-toshiba-bribe-probe.html 248 OECD Working Group on Bribery, October 2009, “Typologies on the Role of Intermediaries in International Business Transactions” http://www.oecd.org/dataoecd/40/17/43879503.pdf 249 Media.Daum.Net, 18 May 2011, http://media.daum.net/society/affair/view.html?cateid=1010&newsid=20110518183104470&p=yonhap ; Yon Hap News, http://www.yonhapnews.co.kr/bulletin/2011/05/18/0200000000AKR20110518175900065.HTML?did=1179m; 250 The Local, 6 October 2009, “Saab Targeted in Bribery Probe”, http://www.thelocal.se/22500/20091006/ ; Defense News, 2 November 2009, “Warrants Sought in Saab Bribery Case”, http://www.defensenews.com/story.php?i=4355929 251 Shearman & Sterling LLP, FCPA Digest of Cases and Review Releases Relating to Bribes to Foreign Offi cials under the Foreign Corrupt Practices Act of 1977 (March 4, 2010), http://www.shearman.com/fi les/upload/FCPA-Digest-Spring-2010.pdf Progress Report 2011: Enforcement of the OECD Anti-Bribery Convention 47
Page 1: www.transparency.org
Page 4 and 5: FOREWORD The key fi nding of TI’s
Page 6 and 7: II. ORGANISATION AND METHODOLOGY Th
Page 8 and 9: COUNTRY-SPECIFIC FINDINGS US and Ge
Page 10 and 11: TABLE A: FOREIGN BRIBERY ENFORCEMEN
Page 12 and 13: IV. FINDINGS ON SPECIFIC ISSUES Thi
Page 14 and 15: LEGAL FRAMEWORK AND ENFORCEMENT SYS
Page 16 and 17: V. REPORTS ON ENFORCEMENT IN OECD C
Page 18 and 19: Legal framework and enforcement sys
Page 20 and 21: deal. 25 The Anti-Corruption Prosec
Page 22 and 23: to win EU framework contracts to as
Page 24 and 25: A local newspaper reported in Octob
Page 26 and 27: gift or another undue advantage, bu
Page 28 and 29: Recommendations: Adopt nationality
Page 30 and 31: offi ce were present during the que
Page 32 and 33: ESTONIA LITTLE OR NO ENFORCEMENT: N
Page 34 and 35: Another case, which has reportedly
Page 36 and 37: in the water and power sector earli
Page 38 and 39: A former executive of German truck
Page 40 and 41: the bill lapsed. In terms of whistl
Page 42 and 43: Telekom. 197 Additionally, a Wikile
Page 44 and 45: public international organisations
Page 46 and 47: Recommendations: Require public com
Page 50 and 51: Inadequacies in legal framework: Sa
Page 52 and 53: of the administrative, fi nancial a
Page 54 and 55: NEW ZEALAND LITTLE OR NO ENFORCEMEN
Page 56 and 57: POLAND LITTLE OR NO ENFORCEMENT: No
Page 58 and 59: are not treated as a suffi ciently
Page 60 and 61: Domestic bribery by foreign compani
Page 62 and 63: Inadequacies in legal framework: Th
Page 64 and 65: dropped due to lack of evidence and
Page 66 and 67: that the American-Swiss electrical
Page 68 and 69: Recommendations: Public prosecutors
Page 70 and 71: lawyers is reportedly seeking to re
Page 72 and 73: and SEC, Technip agreed to pay US $
Page 74 and 75: Inadequacies in enforcement system:
Page 76 and 77: prosecution agreement with the DOJ,
Page 78 and 79: 3. CUSTOMS PROCESSING FOR OIL AND G
Page 80 and 81: ledger accounts or “internal thir
Page 82 and 83: APPENDIX A 2011 OECD PROGRESS REPOR
Page 84 and 85: APPENDIX B 2011 QUESTIONNAIRE FOR N
Page 86 and 87: 2 CONCLUDED CASES For each conclude
Page 88 and 89: III. LEGAL FRAMEWORK AND ENFORCEMEN
Page 90: Our work is made possible by the ge

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