Previously I wrote about how Singapore is strengthening its foreign bribery regime by providing a jurisprudential basis. Foreign bribery is a bit of a mystery. Unlike local bribery, there is no clear motivating factor how a country gets on the bandwagon. The damage to foreign countries may be a distant concern for national governments. Not every country wants to be a global policeman or punish its own nationals for damaging other countries. Certainly not Singapore.

An Interest Group Theory to Foreign Bribery?

I chanced upon an article on the FCPA Blog which provides an easy framework to understand why other countries are getting on the foreign bribery. The blog, which is a summary of an article written by the authors, says:

Once U.S. extraterritorial enforcement began in earnest, the incentives of foreign firms, at least those subject to material FCPA risk, came to mirror those of U.S. firms under the FCPA. They faced an uneven playing field vis-à-vis domestic competitors which, due to their domestic or regional reach, were subject to less risk of U.S. enforcement. Therefore, in order to level the playing field against such competitors, foreign multi-nationals came to favor the importation of a parallel regulatory regime into their own country. In this way, foreign anti-bribery laws spread around the world.

Sean J. Griffith and Thomas H. Lee, “How to get countries to enforce foreign anti-bribery and corruption laws“

In Singapore, as mentioned, foreign bribery enforcement began to draw more attention after the FCPA case against Keppel Offshore and Marine. It was about this time that Singapore started the deferred prosecution agreement scheme for the first time. It did not apply to foreign bribery (Singapore’s Prevention of Corruption Act is pretty vintage compared to other OECD countries), but I thought DPA would definitely aim to apply in foreign bribery in due course.

So did our local MNCs want to level the playing field against other competitors? Maybe, but our local MNCs (which are often government linked) are in a world of their own in Singapore. They could bury this, move on and conduct business as usual.

My thoughts: Enacting Foreign Bribery laws to protect local MNCs?

Here’s my alternative argument.

When the US exercises its extraterritorial jurisdiction, it takes the initiative in determining how such violations are treated.

However, if national governments take action, it would be more difficult for the US to determine the course by itself. If the national government is competent enough, the US and other countries wouldn’t even need to act.

Locals MNCs would prefer the national government to take action since they would have greater access and influence over the course of a local investigation and prosecution. However, in order for local MNCs to benefit, national laws must already have a similar framework, such as foreign bribery laws and deferred prosecution agreements.

This is intuitive to me. I was actually influenced when I read the parliamentary debates on the news breaking of Keppel Offshore and Marine (KOM) being subjected to such heavy fines. The key answers are buried in the middle of the text.

• Unlike the US, the Singaporean government was able to give a conditional warning in lieu of prosecution to the company. As learned readers may note, a conditional warning imposes conditions, but its conditions are not as detailed as a deferred prosecution agreement.
• The government admitted openly that the action under the FCPA would have achieved much more than under local laws. Besides the lack of ability to impose conditions like strengthening compliance programs, the maximum fine under local anti-corruption laws is $100,000. KOM was fined several million US Dollars.

Conclusion

I do agree with the authors that the enactment of foreign bribery laws depend greatly on the actions of the US. If there is no enforcement of the FCPA overseas, there is no impetus anywhere else. I also agree that local business lobbies are probably more influential in pushing national governments to action. However pure market forces are not so influential in this side of the world, and I believe that national protection may be at work here.

Do you agree that market forces influence local MNCs to push for foreign bribery laws, or that national governments trying to protect their own businesses account for a push for foreign bribery laws? I would love to hear your comments!

#Law #Enforcement #ForeignBribery #PreventionofCorruptionAct #FCPA

Love.Law.Robots. – A blog by Ang Hou Fu

• Discuss... this Post
• If you found this post useful, or like my work, a tip is always appreciated:
• Follow this blog on the Fediverse [Enter the blog's address in Mastodon's search accounts function]
• Contact me:
  • Email
  • Github
  • Personal Mastodon
  • LinkedIn
  • Twitter

This feels like an opinion which is begging for a ruling from the Court of Appeal.

The Case

In PP v Michael Tan and another [2019] SGHC 207, the High Court had the opportunity to consider whether the punishment for bribing foreign government officials should be similar to the punishment for bribing local government officials. The facts are not so material to the question. Simply stated, in one case an owner of a shipping company bribed port officials in Malaysia to get out of trouble or to get its competitors into trouble. The second case is related to the notorious US Navy case — the accused was the recipient of the bribes (passive bribery). Appeals from the accused failed in this court. In the second case, the jail term was even increased.

More interestingly, the Prosecution failed in two jurisprudential questions:

• Whether the “public service rationale” should be extended to foreign public officials
• Whether a new sentencing framework should be proposed for corruption offences.

Of course, the focus of this post is on the first question. The judge decided at [72] that the “public service rationale” should not be extended to foreign public officials because the public interest in the original rationale is distinct from that for foreign public officials. Instead, foreign public officials are a separate and distinct aggravating factor for punishment (at [75].

Impact of this case

It’s odd that despite being number 3 on the Corruption Perceptions Index, there has not been much caselaw on foreign bribery. The Prevention of Corruption Act does not refer to foreign bribery, except that oddly Singaporeans who bribe overseas are treated as bribing in Singapore.

In Transparency International’s 2018 “Exporting Corruption” Report, which focus on each country’s enforcement of anti-corruption laws with respect to foreign officials, Singapore is labelled “ Little or No Enforcement “. Specific recommendations in the report include “Establish laws that clearly prohibit Singaporean persons and entities from engaging in corrupt practices overseas” and “Define “foreign public officials” in the PCA and other applicable laws”.

It ain’t exactly the recommendation, but it goes some way towards it. This case establishes the juridicial basis of bribery of foreign officials as an aggravating factor. The opinion should be praised for referring to Singapore’s obligations under the United Nations Convention Against Corruption. The reasons fairly comprehensively set out why Singapore should do its part to punish foreign bribery.

The Distance ahead

Based on the reasons which the Prosecution did not succeed (such as a shiny new sentencing guideline), there is ample room for the Court of Appeal to comment on the scope of the law with respect to foreign bribery.

Judicial decisions can’t paper over all legislative cracks. The main provisions of the PCA, which have stayed largely the same over the last 30 years are badly due for review. The latest events in Singapore in this event have all involved cross-boundary and involve startling amounts.

• The FCPA case against Keppel Offshore & Marine involved political parties and foreign officials, and resulted in a staggering $422 million enforcement action.
• The above case was the largest and most extensive bribery and fraud conspiracy in the history of the United States Navy. The accused in the case was Singaporean.
• Singapore is also involved in the 1MDB scandal. Singaporeans and financial institutions have been taken to task over their roles in the scandal.

One other recent development — the recent introduction of deferred prosecution agreements which would allow the government to hold companies accountable for crimes such as Anti-Bribery. As DPAs are extensively used in the US and UK for anti-bribery offences, it is not difficult to see them having the same application here.

Conclusion

Save for a comprehensive review of the Prevention of Corruption Act, several pieces are in place for a long overdue modernisation of Singapore’s Anti-Bribery Laws. This is timely as more Singapore corporates are involved in cross-boundary business, which increases the risk of bribery. Singapore’s reputation for being a clean country is well-earned; it must adjust to the new circumstances to keep it.

#Law #Singapore #PreventionofCorruptionAct #Compliance

Love.Law.Robots. – A blog by Ang Hou Fu

• Discuss... this Post
• If you found this post useful, or like my work, a tip is always appreciated:
• Follow this blog on the Fediverse [Enter the blog's address in Mastodon's search accounts function]
• Contact me:
  • Email
  • Github
  • Personal Mastodon
  • LinkedIn
  • Twitter