Global Anti-Bribery Compliance: Due Diligence Considerations

From the perspective of global anti-bribery compliance, whether in conjunction with the Foreign Corrupt Practices Act (FCPA), the UK Bribery Act, Canada’s Corruption of Foreign Public Officials Act (CFPOA), or other similar anti-bribery legal regimes, attorneys, international legal practitioners, in-house counsel, accountants, consultants, and others providing advise on anti-bribery compliance issues must take into consideration the implications of lengthy periods associated with applicable statute of limitations.

Depending upon the underlying facts and circumstances, various means exist for federal prosecutors in the United States to effectively extend the five-year statute of limitations that is applicable to the FCPA.  One mechanism is the tolling statute when evidence is officially sought from a foreign jurisdiction.  18 U.S.C. § 3292.  In other jurisdictions, the statute of limitations may be longer or may be tolled in ways that may be rather unique to a particular jurisdiction.

In a number of common law jurisdictions, like the United Kingdom, Canada, Australia, New Zealand, and Ireland, no statute of limitations applies to indictible offenses.  Violations of the anti-bribery legal regimes in each of these common law countries can constitute an indictible offense, thereby making the anti-bribery offenses not subject to any statute of limitations.

For due diligence and risk assessment considerations, attorneys and, in particular, international legal practitioners and in-house counsel need to be wary about drawing conclusions based upon assumptions associated with relatively short statutes of limitations.  Not only may there be the possibilility that the statute of limitations may not have run for reasons that may not be readily ascertainable, there may also be the possibility that the anti-bribery laws of other jurisdictions may apply and that may still be viable.

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