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The United States implementation of the OECD Convention was relatively minor since it already had the Foreign Corrupt Practices Act (FCPA). Subject to territorial and nationality jurisdiction, the FCPA has two principal mechanisms: the anti-bribery provisions, a general prohibition on payments to foreign public officials, and the accounting and record-keeping provisions, which impose requirements on the accounting and record-keeping practices of the domestic and foreign operations of issuers—in general, publicly held entities. Defenses or exceptions are available based upon the statute of limitations, the local written law, the payment being a facilitation payment, and duress. The FCPA Resource Guide identifies important factors in establishing adequate internal controls and an effective compliance program. The Travel Act may be applied to situations involving private or commercial bribery in foreign settings. Money laundering laws may also be applied to situations involving foreign bribery as well as laws relating to debarment from public contracting.

Australia chose to implement the OECD Convention by amending its Criminal Code Act 1995 to codify the offense of bribing a foreign public official, to include relevant definitions, and to make the offense subject to territorial and nationality jurisdiction. Australia's amendments to the Criminal Code Act 1995 closely follow the terms of the OECD Convention in establishing the elements for a violation. Although no statute of limitations applies under Australian law, defenses are currently available based on the local written law, on a payment being a facilitation payment, or on proving duress. In addition, in Australian states, state secret commission offenses relating to the making of improper inducements in the private or public sector may also be applicable to situations involving foreign bribery. Australia's money laundering laws and the record-keeping provisions of its Corporation Act may also apply to situations in which bribery in foreign settings is involved.

Like many OECD signatory countries, Canada has a checkered and inconsistent history of enforcement in relation to bribery and corruption offenses. In the past five years, however, Canada has taken deliberate and effective steps to strengthen its enforcement regime and was recently noted as one of the “most improved” nations in anti-bribery prosecutions by the OECD. In addition to a marked increase in prosecutions, these changes include the elimination of facilitation payments as a valid defense in 2017 and amendments to the governing legislation that allows Canadian authorities to prosecute nationals for crimes committed entirely abroad. The governing legislation in Canada relating to the bribing of foreign public officials is exclusively criminal in nature and has no statute of limitations. Both bribery and bookkeeping offenses are captured under the legislation. The combination of the lack of any time-based defenses, as well as the enhanced arsenal of the liberalization of the law of jurisdiction and the increased ambit of substantive offenses, point to a more robust enforcement regime for bribery and corruption offenses in Canada going forward.

How should bribery be defined for the purposes of transnational bribery law? This chapter begins with a motivating example from Haiti, a paradigmatic case of transnational bribery. After reducing the transaction to its essential elements and explaining the justifications for prohibiting similar transactions, we turn to the tremendous variety of ways in which the scope of prohibitions on transnational bribery can be expanded or narrowed by defining, or redefining, each of the elements of a paradigmatic bribe. Topics covered include: the physical elements of the offense, defenses, whether bribery of public officials merits distinct legal treatment, and whether bribe payers and recipients ought to be treated differently.

Australia’s anti-bribery and anti-corruption laws appear simple in expression but have proved illusive in securing successful prosecutions. The structure of the foreign bribery offense is complicated and requires numerous physical and mental elements to be established for each limb of the offense. Since 1999 when Australia enacted its foreign bribery laws, there have been several corporate and individual guilty pleas in foreign bribery cases but as yet no contested trials. The first case in 2011 arising out of the Securency banknote printing scandal has concluded with mixed results: several plea deals yet other prosecutions permanently stayed due to illegal conduct on the part of the investigative agencies. Other more recent cases have started but are early in the criminal justice system. The traditional approach of the Australian prosecutors is that once charges are laid, they expect a guilty plea to the offense charged or an agreed lesser offenses and then any discount is a matter for the sentencing court. Australia still lacks a structured approach to complex commercial crime including foreign bribery. While there are reforms pending before the Australian government on changes to the foreign bribery offense deferred prosecution agreements, a strict liability corporate offense of failing to prevent foreign bribery, and enhanced private sector whistle-blower laws, they are yet to be implemented. While resources at the Commonwealth level have improved over the years, they remain diffuse, underfunded, and under-resourced. Australian business is starting to adopt a more proactive response to manage offshore risk and the expected legislative reforms are pushing this along. Australian business increasingly knows it must address these issues in a global economy as its most significant trading partners are taking a similarly tough stand against bribery and corruption.

New Zealand implemented the OECD Convention by amending the Crimes Act 1961 by adding section 105C, section 105D, and section 105E. The new sections made the bribery of a foreign public official a criminal offense subject to both territorial and nationality jurisdiction. Although different than other jurisdictions in approach, defenses based on the local written law or a facilitation payment are available along with a defense based on duress. New Zealand's secret commissions offense, which is premised upon principles associated with the breach of an agent's duty to his principal, may supplement its prohibition on the bribery of foreign public officials in situations where conduct commonly referred to as private bribery or commercial bribery may be involved and subject to New Zealand's jurisdiction. The money laundering offense under New Zealand law may also be applicable to situations involving foreign bribery as do its laws relating to record-keeping practices of entities.

The South African legal regime recognizes the role of international law and treaties, and much of South Africa’s anti-corruption legislation has been enacted to give effect to various international conventions and treaties. Accordingly, this chapter will discuss and detail the material developments in respect of bribery and anti-corruption legislation and further consider the interplay between applicable South African legislation and international conventions. This chapter will further, inter alia, cover legal issues relating to certain presumptions applicable to statutory offenses, the nature of what is referred to as “facilitation payments,” how “gifts, gratuities and hospitality” are dealt with in terms of applicable legislation, whistle-blower protection, international cooperation and extradition agreements, and the South African corporate practice regarding the foregoing. Where one is in breach of certain anti-corruption legislation, it should be noted that one may inadvertently also be in breach of South African anti-trust legislation, and these issues will be further considered and detailed herein.