Global Anti-Bribery Compliance: Statutes of Limitations

From the perspective of global anti-bribery compliance, or even FCPA compliance, particular care needs to be taken to take into account the statute of limitations in jurisdictions that have implemented anti-bribery legislation.  For example, in many common law jurisdictions, like the United Kingdom, Canada, Australia, New Zealand, and Ireland, indictable offenses are not subject to a statute of limitations. In each of these jurisdictions, bribery of a foreign official is treated as an indictible offense.

While there may be reasonable limits in these common law jurisdictions as to when and under what circumstances enforcement officials may pursue an indictment for violations that may have taken place many years in the past, anyone conducting due diligence or evaluating risk must take into account whether there may be exposure to anti-bribery violations in jurisdictions other than the United States.

Given the absence of a statute of limitations in some jurisdictions, and statutes of limitations in other jurisdictions longer than the United States, any due diligence or risk assessment should not disregard the lack of enforcement activity on the part of a particular jurisdiction.  That level of activity can change dramatically over time.  Where there is no statute of limitations or there is a long statute of limitations, lack of activity should never be misconstruced as evidence of a lack of exposure risk.

Many countries have been subject to criticism by the OECD Working Group and commentators for a lack of aggressive enforcement of their anti0bribery laws. That dynamic in terms of enforcement efforts is beginning to change in a number of jurisdictions.  It can be expected to grow over time as more and more countries implement and begin to enforce their anti-bribery legislation. As a result, due diligence, risk assessment, and other compliance considerations should not be limited to focusing on whether there may be exposure to liability in the more active jurisdictions.