Ireland, like the U.S. a member country of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, has an FCPA-like law.
However, as explained in this Ireland Department of Justice and Equality document “the existing law on corruption – the Prevention of Corruption Acts 1889 to 2010 – comprises several different Acts, and includes statutes dating back to the late nineteenth century.”
Thus, Ireland is in the process of revising its FCPA-like law and the purpose of the proposed Criminal Justice (Corruption) Bill 2012 “is to clarify and strengthen the law criminalising corruption by replacing and updating 7 different statutes dating back to Victorian times, so that the legislation is essentially in one statute.”
One aspect of the proposed legislation, in response to OECD criticism of existing Irish law, is to establish a “clear provision for the liability of corporate bodies for corrupt criminal acts.” The Department of Justice and Equality explains as follows. “Up to now, we have not provided specifically in statute in this area, relying instead on the common law in this regard. [The proposed law] include[s] a new provision setting out that a corporate body can be held liable where an officer or employee of the body commits a corruption offence with the intention of obtaining a business advantage for the body. It is considered that this will provide greater clarity for companies as regards their criminal liability in this regard.”
However, and this is the key point for this post, the proposed legislation, “makes provision for a defence by a body corporate to prove that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence.”
Head 13, titled “Offences by Bodies Corporate and Unincorporated Bodies,” of the draft legislation (see here) provides as follows. “It is a defence to an offence … for the defendant body corporate to prove that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence.”
In “Revisiting a Foreign Corrupt Practices Act Compliance Defense” (here) I highlight several other peer countries that already have a compliance-like defense relevant to their “FCPA-like” law such as the U.K., Australia, Chile, Germany, Hungary, Italy, Japan, Korea, Poland, Portugal, Sweden, and Switzerland.
[Note: That additional OECD Convention countries do not have compliance-like defenses ,does not mean that those countries rejected such a defense. Rather, in many OECD Convention countries the concept of legal person criminal liability (as opposed to natural person criminal liability) is non-existent. Further, in many OECD Convention countries that recognize legal person criminal liability, such legal person liability can only result from the actions of high-level personnel or other so-called ‘controlling minds’ of the legal person. If a foreign country does not provide legal person liability, there is no need for a compliance defense, and the rationale for a compliance defense is less compelling if legal exposure of the legal person can only result from the conduct of high-level executive personnel or other ‘controlling’ minds of the legal person.]
In the article, I argue that, contrary to the claims of FCPA compliance defense opponents such as the DOJ, a compliance-like defense applicable to the offense of bribery of foreign officials is not novel, risky, or dangerous and that amending the FCPA to include a compliance defense would not conflict with U.S. OECD Convention obligations. In this previous post, I argued that a compliance defense is not a race to the bottom, it is a race to the top.
For more on the proposed Irish law, see this recent Irish Times article.
