Post on 18-Jan-2021
Thailand’s Experience: Foreign Bribery, Corporate Criminal Liability and Their Impact on Business Integrity
Akharakit Keeratithanachaiyos International Affairs Strategy Specialist
National Anti-Corruption Commission (ป.ป.ช.)
NACC Organizational Structure
9-Member-Commission
Investigation
Receives on average 2000 complaint/year
Both in private & public sector
Prevention
Office of the NACC – 2,400 staff
Secretary-General
Deputy/Assistant Secretary-Generals
Examine assets & liabilities
of politicians & public officials
Asset Examination/ Unusual Wealthiness
National Anti-Corruption Commission
Investigation of public sector corruption and unusual wealth cases:
subpoena powers, search and seizure, witness protection, immunity agreements
Design/implement prevention corruption schemes across the /
public and private sector
Conduct Assets/Liabilities Examination of politicians and specified
high-ranking public officials
Investigate, Freeze and Forfeit proceeds of corruption
Authority to initiate prosecution if the Attorney-General decides not to
prosecute a case forwarded by the NACC
(Powers and duties as stipulated in the Organic Act on Counter Corruption)
https://www.youtube.com/watch?v=7a4jv-Z6BMQ
Parallel Bribery Enforcement Actions: Tourism Authority of Thailand
Paid USD 2 mil.
11 projects = THB 500 mln.
2003-2007
Country where bribes were paid
No. of FCPA cases
China 65
Indonesia 22
India 21
Thailand 12
Vietnam 10
South Korea 8
Malaysia 5
Taiwan 4
Philippines 4
Lao PDR 1
Source: Stanford Law School, FCPA Clearinghouse
Destination of US FCPA Bribes in Asia
Top 10 Monetary Penalties Paid for Violation of the US FCPA
Rank Company Headquartered/ Origin
Sector Year Penalties (USD mln.)
1 Airbus Netherlands/France Aerospace 2020 2,090
2 Petroleo Brasileiro Brazil Oil & Gas 2018 1,780
3 Ericsson Sweden Telecom. 2019 1,060
4 Telia Sweden Telecom. 2017 1,010
5 MTS Russia Telecom. 2019 850
6 Siemens Germany Engineering 2008 800
7 VimpelCom Netherlands Telecom. 2016 795
8 Alstom France Transport. 2014 772
9 Société Générale France Banking 2018 585
10 KBR/Haliburton United States Oil & Gas 2009 579
3rd Revision of the Organic Act on Counter
Corruption: Effective July 2015
Paying bribes to Thai & foreign officials Criminal liability of legal persons Suspension of statute of limitation Value-based forfeiture International cooperation
Thailand’s Law on Corporate Criminal Liability for Bribery Offences
Thailand first introduced corporate criminal liability for bribery in 2015, under
OACC “Section 123/5”
It is also included in new Organic Act on Anti-Corruption B.E. 2561 (2018)
“Section 176”
9
More referrals from
domestic and foreign
law enforcement and
regulatory bodies:
share evidence or
parallel investigations
Increased use of
immunity agreements for individuals
Bribery Enforcement Trends:
Hypothetic Case: A Corruption Case of a US$100-Highways Construction Project
Corrupt Politician
Briber: Manager A Awards construction contract
worth $100 million USD
:
• Paid Bribes of $ 20 million USD • Calculated Profit = $30 million USD
Before 15 July 2015
1. Corrupt politician fined and jailed
2. Manager fined and jailed
Typical Enforcement Outcome for a Bribery Case
Corrupt Politician
Manager A
3. US$20 million bribe confiscated as proceeds/instrumentalities of crime
Before 15 July 2015
Has Justice Been Fully Served?
Briber
Who did the manager represent?
Where did the $20 million bribe money come from?
Who is the ultimate beneficiary of the $30 million
profits?
Was the $30 million profits forfeit?
Was Company A directly affected by the
law enforcement action?
Why was Company A not penalized?
Is Company A likely to continue to
engage in similar corrupt conduct?
Before 15 July 2015
Organic Act on Anti-Corruption Section 176
1. Any person who gives, offers to give, or promises to give any property or benefit to a public official, foreign public official, official of a public international organisation with an intent to induce such person to wrongfully perform, not perform or delay the performance of any duty in his or her office shall be liable to an thousand Baht or to both. imprisonment for a term of not exceeding five years or a fine of not exceeding one hundred thousand baht;
2. In case the offender under paragraph one is a person associated with any juristic person and the action was taken for the benefit of such juristic person, provided that such juristic person does not have in place appropriate internal control measures to prevent the commission of such offence, the juristic person shall be deemed to have committed the offence under this Section and shall be liable to a fine of one to two times of the damages caused or benefits received;
13
The juristic person under paragraph two shall mean juristic person established under Thai laws and juristic person established under the foreign laws which operates business in Thailand.
A person associated with a juristic person under paragraph two shall mean a representative, employee, agent, affiliated company, or any person acting for or on behalf of such juristic person, regardless of whether having the power or authority to take such action.
14
Organic Act on Anti-Corruption Section 176
Employees/agents/intermediaries gave bribes/benefits to Thai/foreign officials, or agents of international organizations (covers state-owned enterprises, consortiums and joint venture partnership);
For the benefit of/to the advantage of the company (regardless of outcome of bribery effort);
Allows for prosecution of both natural and legal persons;
Legal persons shall be criminally liable if the legal person has not put in place sufficient measures to prevent the bribery;
Forfeiture of up to twice the amount of profits received by legal person if criminally convicted;
Forward case to relevant law enforcement (e.g. anti-money laundering office), regulatory (SEC) and tax authorities (Revenue Dept.)
Key provisions of OACC
Section 176
Drafting Committee of the NACC Guidelines on Anti-Bribery Principles
for Legal Persons
16
• NACC and relevant public and regulatory bodies
• The Securities and Exchange Commission (SEC)
• The Federation of Thai Industries
• Thai Institute of Directors (IOD)
• Chambers of Commerce
• Professional Associations
“ NACC Guidelines on Appropriate Internal Control Measures for Juristic Persons to Prevent Bribery…”
Periodic review of effectiveness of anti-bribery measures
Fundamental Principles of Internal Control for Legal Persons to Prevent Bribery
NACC Guidelines:
Risk assessment to effectively identify exposure to bribery
Enhanced measures for high-risk and vulnerable areas
Application of anti-bribery measures to business partners
Strong policy and support from top-level management
Accurate books and accounting records
HR policies complementary to anti-bribery measures
Communication channels to encourage reporting of bribery
NACC Seminar on
Empowering the Private Sector in the Fight Against Bribery
1 July 2016
Afternoon Session: over 300 business representatives were divided into 8 face-to-face survey groups according to types of industry to gather their feedback on and suggestions on improving the draft guidance.
Over 300 business representatives from 8 major industries and business sectors participated in survey groups discussions to provide feedback on draft NACC guidelines.
Dinner Talk to Promote Public-Private Collaboration to Fight Against Bribery
September 27, 2017
24
National Seminar to Launch NACC Anti-Bribery Guidance for Private Sector (Clean Business, Sustainable Thailand) September 2017
Regional Seminars on Promoting Anti-Bribery Business Culture
North
South
East
26
Northeastern
NACC’s key partners The Thai Chamber of Commerce
27
NACC’s key partners Joint Foreign Chambers of Commerce
NACC’s key partners Securities and Exchange Commission
of Thailand
29
Learn more about the CAC at www.thai-cac.com
See more:
dtac AC Handbook
Telecommunication Industry
In compliance with Principles 1 & 3 of NACC Guidance
Banking and Finance Industry
Whistleblower hotline
Periodic review of anti-bribery compliance systems by third
parties
In compliance with Principle 7 of NACC Guidance
In compliance with Principle 8 of NACC Guidance
Banking and Finance Industry
NACC representative conducting a training workshop for c-suite executives of UOB (Thailand)
In compliance with Principle 4 of NACC Guidance
In compliance with Principle 4 of NACC Guidance
No Gift Polices: Thai State-owned enterprises
In compliance with Principle 3 of NACC Guidance
Promotion of Anti-Bribery Business Culture
Promotion of Anti-Bribery Business Culture
Available for download at: www.nacc.go.th/abas
38
NACC Guidelines on Anti-Bribery Principles
for Legal Persons/Business
Thai English Japanese Chinese