21. The Creep of Legislation Targeting Private Corruption
While essentially all countries criminalise public bribery, laws regarding private corruption have been slower to emerge. Only a few nations that criminalise public bribery also prohibit domestic private bribery, and an even smaller subset of these countries criminalise transnational private bribery. Further, governments tend to both prosecute public bribery offences far more often than private bribery and punish them more severely.
The lag in private corruption regulation and prosecution is largely due to the traditional assumption that private corruption only affects businesses and thus is less serious. Many also believe that the free market serves as a sufficient safeguard against private corruption, as companies that engage in corruption will be penalised and deterred from engaging in inefficient corrupt behaviour. However, recent studies have shown that the problem of private sector corruption is almost as prevalent as public sector corruption and that the costs resulting from private sector corruption are high. Further, executives in multinational companies doing business in emerging markets have indicated that private corruption is a top concern.
Moreover, private corruption affects both the private and public sectors. Aside from resulting in higher risks and decreased efficiencies for companies, private corruption affects the functioning of whole economies by increasing costs and reducing the quality of consumer goods and services, as well as threatening national security. Private corruption even affects how corporations structure themselves: studies have shown a causal link between multinational corporations structuring foreign subsidiaries as wholly owned subsidiaries in countries and higher levels of perceived private corruption.
The effects of private corruption have become even more apparent in the wake of the worldwide privatisation movement, which involves the delegation of traditional systems such as education, prisons, healthcare and welfare to the private sector. As governments increasingly transfer their functions from the public to the private sector, the effects of private corruption on the public are exacerbated. The public is thus increasingly the ultimate victim of private corruption.
Governments have paid greater attention to private corruption as the ways in which it threatens the effective functioning of local, national and international trade, the integrity of labour relations and free competition has become more apparent.
Overview of regulation of private corruption
The regulation of private bribery varies across jurisdictions, from a total absence of regulation in many countries to the UK Bribery Act, which is widely regarded as the most severe private anti-bribery legislation in the world. While some countries have national legislation specifically targeting private corruption, others, such as the United States, target private corruption through a fragmented combination of existing laws.
United Nations Convention Against Corruption
The United Nations Convention Against Corruption (UNCAC), which was adopted by the United Nations General Assembly on 31 October 2003 and came into force on 14 December 2005, establishes standards, measures and rules to help Member States strengthen their anti-corruption legislation. While previous international corruption treaties had applied exclusively to public corruption, UNCAC specifically addresses private corruption by encouraging ratifying states to criminalise both public and private commercial bribery.
UNCAC includes preventive measures applicable to both the public and private sectors, including accounting standards for private companies, and mandatory and permissive criminalisation obligations. The Convention also includes obligations with respect to public and private sector bribery, trading in influence and illicit enrichment. Although the regulation of private bribery is not mandatory under UNCAC, the proposed measures for regulating and criminalising private bribery signal the international community’s disapproval of private corruption and the importance of taking action against it. To guide Member States in fulfilling their obligations under the treaty, UNCAC also produced a toolkit that proposes ways for signatory states to monitor and improve their anti-corruption frameworks. There are currently 186 signatories to UNCAC, including most countries in Latin America.
Regulation of private corruption in the United Kingdom and Europe
Both the United Kingdom and the European Union have been at the forefront of implementing legislation targeting private corruption. In the United Kingdom, the UK Bribery Act treats private and public bribery as the same offence through statutory language that prohibits active and passive bribery without differentiating between public and private actors. The merging of public and private bribery serves to underscore that private bribery is part of a larger family of bribery offences, and raises awareness of the existence and significance of private bribery. Many view this type of comprehensive bribery statute as essential to directing attention to the prosecution of corruption in private forms.
The European Union regulates private corruption through the Council Framework Decision 2003/568/JAI on combating corruption in the private sector, which encourages Member States to take measures to criminalise private corruption, though in a less comprehensive manner than the UK Bribery Act.
Regulation of private corruption in Latin America
In Latin America, only three countries have passed laws expressly criminalising private bribery, while Brazil has a proposed law criminalising private corruption pending in its Congress. Colombia, Chile and Venezuela have implemented legislation targeting private corruption with varying degrees of success.
In 2011, Colombia specifically incorporated commercial bribery into its Criminal Code under Article 250A by Law No. 1474, which carries a penalty of between four and eight years in prison as well as a fine. This law, however, currently only applies to bribery by a corporate representative and requires there to be damage to the company. Colombia may also punish private corruption through the existing crimes of illicit enrichment and embezzlement.
In 2016, Venezuela passed its Law Against Corruption, which specifically criminalises private corruption regardless of its effect on the public sector. Violations of this Law carry a penalty of between two and eight years in prison and a fine of 100 per cent of the bribe offered (irrespective of the amount potentially gained) or received. Companies found to have engaged in private bribery can also be removed from the state’s Sole Register of Persons that Engage in Economic Activities.
Chile recently criminalised private corruption by adding bribery between private parties and fraudulent administration to its Criminal Code with the passage of Law No. 21121 in November 2018. Under Article 287 of the Criminal Code, private bribery is now punishable by imprisonment and a fine for anyone who receives or offers a bribe. This addition to the Criminal Code also criminalises fraudulent administration of the property of another under Article 470, of which companies can be victims.
Mexico’s anti-corruption system
Corruption has long been an entrenched problem in Mexico. Companies doing business there cite diverged funds, money laundering and bribery as recurring concerns; a majority of Mexican businesses consider corruption to be ‘business as usual’. The pernicious effects of corruption have become even more apparent in the wake of government efforts to curb drug-related violence in Mexico.
In response to the scattered and impotent efforts that have characterised its anti-corruption efforts in the past, the Mexican Congress voted in 2015 to amend its constitution to renovate its anti-corruption apparatus. An impressive push by civil society organisations putting pressure on states to validate the constitutional amendment led to the creation of the National Anti-Corruption System (SNA). This organisation is led by a board with civilian oversight that coordinates between existing anti-corruption institutions at the state and federal levels that had previously operated with limited resources or methods for coordination.
The SNA was created through the General Law on Administrative Responsibilities (GLAR), passed in 2015, which mirrors the US Foreign Corrupt Practice Act (FCPA) in many key respects. For example, GLAR applies to both individuals and corporations, requires companies to maintain internal compliance controls, and includes substantive anti-bribery provisions and significant monetary penalties for companies found to have engaged in corruption. In addition, companies may mitigate the penalties of engaging in corruption by between 50 and 70 per cent by self-reporting violations and cooperating with government investigations. Unlike the FCPA, however, the extraterritorial reach of GLAR is limited and its application to private corruption is unclear as it focuses on corruption in the context of securing public contracts.
As a system designed to use existing anti-corruption infrastructure, the SNA seeks to create a system comprised of (1) independent and effective authorities coordinated around a common mission to prevent and combat corruption, (2) a new comprehensive and integrated code of conduct for public servants with punishments and sanctions for corruption, (3) a new criminal regime to fight corruption and (4) a new monitoring and oversight system to coordinate state and local authorities. In addition, central to the new system is the creation of a new federal prosecutor’s office dedicated to combating corruption, which has the authority to investigate high-level officials as well as private companies.
While the primary purpose of GLAR was the regulation of domestic public corruption, the civil society initiatives that followed certainly contemplated private corruption. The SNA was designed and presented to the Mexican Congress by civil society groups operating under a new Mexican law that allows laws to be brought to Congress as citizens’ initiatives. One of the seven key points of the citizens’ initiative that led to the congressional adoption of the SNA was the implementation of new fines imposed on businesses and individuals involved in practices that violate international standards of business ethics, a component that could be applied to instances of public or private corruption.
While the SNA penalises private individuals for engaging in corruption, it does not include any provision explicitly targeting corruption between private parties. However, GLAR does incorporate crimes of collusion, money laundering and embezzlement, which might be used to target certain forms of private corruption. The prohibition on collusion, for example, includes a proscription on agreements between private parties for the purposes of obtaining a contract to obtain an undue benefit or causing damage to public finances. While the SNA includes provisions that could be used to target private corruption, it remains to be seen whether it will be used as such, given the government’s current priority of targeting public corruption.
The SNA was supposed to be fully implemented by July 2017; however, the Peña Nieto administration held up the appointment of various key positions, such as the national chief anti-corruption prosecutor and the magistrates tasked with adjudicating cases, and thwarted critical investigations, which left many components of the SNA impotent. In contrast, the administration of Andrés Manuel López Obrador has made anti-corruption efforts one of its main goals. For example, President López Obrador’s Plan de Nación 2018-2024 targets corruption as a primary driver of inequality and poverty in Mexico. President López Obrador appointed María de la Luz Mijangos Borja as the national anti-corruption prosecutor in March 2019 and a few important investigations into public corruption have progressed under his administration. The coming months and years will reveal whether the SNA will be used effectively to combat both private and public corruption in Mexico.
Brazil’s attempts to regulate private bribery
In the wake of the Lava Jato (Operation Car Wash) and FIFA investigations, support has coalesced around the regulation of private corruption in Brazil. The FIFA scandal brought to light extensive private corruption among individuals involved in the 2014 World Cup in Brazil, including the conviction in the United States of José Maria Marin, who served as head of the Brazil’s 2014 World Cup Committee, for taking over US$6 million in bribes for media and marketing rights related to Brazilian and South American soccer tournaments. Marin’s conviction came in the wake of the larger FIFA case, which revealed widespread private corruption among soccer and media executives.
The Operation Car Wash investigation, which has uncovered widespread corruption in Brazil’s public sector, has further spurred interest in regulating private corruption in Brazil, as the scandal has entangled powerful private companies. While there have been various attempts to pass laws penalising private corruption, Brazil does not currently regulate commercial bribery. More broadly, Brazilian criminal law currently only regulates bribery by individuals rather than institutions, though companies can face civil and administrative liability (albeit not for commercial bribery and other forms of private corruption).
Interest in regulating private corruption in Brazil has grown in recent years. For example, the National Strategy to Combat Corruption and Money Laundering (ENCCLA), founded in 2003 by the Brazilian Ministry of Justice, is a network of more than 70 private and public institutions, including the federal police, federal prosecutors, Office of the Comptroller General, the Brazilian Securities and Exchange Commission. In 2018, ENCCLA selected private corruption as its area of focus and as such has taken the lead in creating proposals for measures to fight private corruption.
Proposed laws regulating private corruption in Brazil – described below – have sought to specifically define private corruption as a crime and impose a penalty for such behaviour.
- Law Project No. 2452 of 2015 proposes criminalising private corruption in the medical sector. This law was proposed after the discovery of the Orthosis and Prosthesis Mafia scandal, which involved the payment of gratuities to doctors who facilitated the sale and use of medical implants in their hospitals, including out-of-date or expired medical devices. The proposed Law would criminalise the ‘acceptance, request, or demand of a health professional, in their professional capacity, to receive a financial benefit from the use of a medical implant’. The penalty for this crime would be between two and six months in prison and a fine. Brazil has not yet passed this Law.
- In the wake of the FIFA scandal, federal deputy João Derly proposed Law Project No. 5895 of 2016, which seeks to alter Federal Law No. 9279 of 1996 to bring private corruption within the ambit of the existing unfair competition provision of the National Law on Industrial Property. The offence would carry a maximum prison sentence of one year. This proposed Law has been criticised, however, as failing to acknowledge that private corruption has effects beyond unfair competition.
- The Brazilian National Congress is currently considering a new bill to reform the Penal Code through the proposed New Brazilian Penal Code, which would include a provision criminalising private bribery. Article 172 of the new bill would criminalise the receiving of an advantage by an employee or representative of a company in exchange for favourable treatment by a third party. Companies could face fines, debarment from public contracts, confiscation of assets, and mandatory temporary or permanent winding up, and the individuals involved could face a prison sentence of between one and four years.
Although Brazil does not currently penalise private bribery as an independent crime, scholars have suggested that Brazil could start to prosecute private bribery through other existing laws that partially cover corruption in the private sector, such as those regulating unfair competition or fraudulent administration.
First, the unfair competition portion of the National Law on Industrial Propertyalready criminalises commercial bribery between competing companies for anticompetitive purposes. However, this law is limited in its application to the anticompetition sphere and to companies within the same industry. Because most instances of private corruption occur between provider and consumer companies rather than between competing companies, the unfair competition law has been insufficient to fully target private corruption, evincing the need for more comprehensive legislation.
Second, private corruption might alternatively be tackled under the existing law against fraudulent administration of financial institutions (Law No. 7492 of 1986). Although this law could be applied to certain types of private corruption, it is limited to regulating financial institutions. In addition, pursuing a fraudulent administration conviction based on private bribery might be held unconstitutional as not being defined with sufficient particularity as required by Article 5 of the Brazilian Constitution. While existing laws are insufficient to properly combat private corruption in Brazil, their increased use to target the activities they do cover should serve as a warning to the private sector of the government’s willingness to prosecute those who participate in private-to-private corruption.
Brazil’s increased enforcement activities against public officials who have participated in corruption also could indicate a willingness to target private corruption. At the very least, the sheer number of proposed laws targeting private corruption demonstrates that it is likely to be the government’s next focus in its fight to identify and eliminate corruption.
Laws regulating private corruption in the United States
The United States has a robust framework of laws, regulations and policies for targeting private corruption at the state and federal levels. While there is no specific federal law prohibiting bribery between private parties, 38 states have enacted commercial bribery statutes that criminalise private bribery and corruption at the state level, while other states prosecute commercial bribery under generic fraud statutes. States with specific commercial bribery statutes often define the crime as when one ‘confers, or offers or agrees to confer, any benefit upon any employee, agent or fiduciary . . . with intent to influence his conduct in relation to his employer’s or principal’s affairs’.
Private corruption is not per se criminalised at the federal level because the US Constitution reserves for states the power to prosecute most crimes absent a sufficient basis for federal jurisdiction. However, there are a variety of federal statutes that can be used to address private corruption, including the mail and wire fraud statutes, securities and antitrust laws, the FCPA and the Travel Act. Federal regulators and prosecutors have also targeted private corruption through various other federal causes of action, such as antitrust, securities fraud, conspiracy, the Money Laundering Control Act, the Hobbes Act, civil and criminal provisions of the Racketeer Influenced and Corrupt Organizations Act and 18 USC Section 666 (known as the federal funds bribery statute). These federal statutes have provided a solid framework for the federal prosecution of commercial bribery in the United States, which has increased in recent years. The Travel Act, the FCPA, and mail and wire fraud statutes have been of particular importance in the federal regulation of private corruption.
The Travel Act encompasses the federal prosecutions predicated on violations of state commercial bribery laws involving interstate travel or transportation in the aid of racketeering enterprises. Thus, a person who crosses state lines to commit an act of commercial corruption can be held liable under the state’s commercial bribery statutes and under common law tort causes of action. In states that lack a commercial bribery statue, the Travel Act can be used to prosecute acts of interstate bribery through the unfair trade practice laws of those states under the theory that bribery confers an unfair advantage in the marketplace.
The FCPA can also be used to target private corruption through its books and records and internal control provisions. In particular, the FCPA’s books and records provision requires publicly traded companies to maintain books and records with ‘reasonable detail’ to prevent the false or off-the-books accounts that, among other things, are often used to conceal commercial bribery. The FCPA also imposes on publicly traded companies the obligation to adopt appropriate internal accounting controls that, among other things, decrease the occurrence of bribery and other forms of corruption. Internal controls must be adequate to ensure to a reasonable degree that all transactions and assets are authorised by management. Indeed, the absence of such controls has been tied to financial fraud, commercial bribery and embezzlement by company employees.
The mail and wire fraud statutes have also been used to federally prosecute private corruption. These statutes, as amended by the honest services law, prohibit the use of interstate communications such as the mail system, phone or internet in furtherance of a ‘scheme to defraud’ a person of their tangible property rights or intangible right to ‘honest services’. Since the 1940s, courts have recognised a wide range of conduct, including bribery, kickbacks or undisclosed self-dealing in breach of a fiduciary duty, and even international conduct as a ‘scheme to defraud’ a corporation by denying its right to an employee’s ‘honest services’.
However, in 2010, the Supreme Court limited the applicability of the ‘honest services’ theory of the mail and wire fraud statutes to bribery and kickback schemes, eliminating undisclosed self-dealing from the statutes’ purview. Some believe the Court’s decision has had a chilling effect on the number of ‘honest services’ prosecutions brought in the United States, though the prosecution of top FIFA officials for ‘honest services’ violations in 2017 may suggest otherwise. Thus, while the mail and wire fraud statutes allow for the federal prosecution of private sector corruption based on the illegal use of mail or interstate wire communications for bribery and kickback schemes, the lack of clarity surrounding the boundaries of its application may hamper its usefulness and demonstrate the need for a more comprehensive federal framework regulating private sector corruption.
Given the aggressive pursuit of commercial bribery charges by US federal prosecutors in recent years, companies should be aware that even insubstantial involvement of the US mail, phone, internet or banking systems in carrying out acts of private corruption could trigger a federal criminal investigation.
How to identify kickbacks within private companies
Kickbacks involve the negotiated remuneration of an individual for facilitating a transaction and are generally considered a higher risk in free market countries. Kickback schemes almost always occur during the purchase or bidding phase of a transaction between two companies, and are often disguised as management or consultancy fees. However, kickback schemes do not always involve the payment of cash, but can rather involve hidden interests in other companies, employment opportunities or tangible gifts.
While the line between sales processes and kickbacks is difficult to draw, companies can implement robust monitoring policies to help prevent and identify kickbacks in the corporate setting. While companies should implement whistle-blower mechanisms sufficient to encourage the reporting of kickback schemes, whistle-blowers usually report wrongdoing after it has already occurred. For this reason, it is important for companies to take steps to prevent and detect kickback schemes before they come to fruition. This can be done through the creation of internal investigative units and software aimed at spotting indicators of kickbacks.
Indicators of kickback schemes vary according to the type of industry and transaction. For example, the involvement of middlemen or third parties in brokering a transaction where none is needed is a potential indicator that kickbacks may be present.
In the purchase context, high prices, high-volume purchases or unusual approval patterns may indicate the existence of a kickback scheme. In the bidding context, unexplained delays, bidding irregularities in favour of a small group of contractors, or unjustified sole-source awards are often signs that bribes and kickbacks are being offered and accepted. In the sales context, experts suggest comparing prices paid for goods or services with market rates to identify continued purchases of high-priced, low-quality goods or unexplained favourable treatment of certain vendors.
Corporate bribes and kickbacks often produce a paper trail that can successfully be detected and followed with the aid of robust accounting procedures, including internal investigative units using software to spot indicators of kickbacks. Increased oversight of operations with a high risk of corrupt practices not only aids in the detection of kickbacks but has also been shown to prevent them.
Ultimately, companies can take steps to prevent kickback schemes by designing policies that clearly define prohibited conduct and conflicts of interest. Clear policies and training of employees can help create business environments that value ethical behaviour as the best way to serve a company’s interests. In addition, the inclusion of anti-corruption clauses in contracts, which allow contracts to be terminated if any party has engaged in any form of corruption, can help prevent kickbacks and signal to potential business partners a company’s disapproval of the practice.
As awareness of the prevalence and nefariousness of private corruption grows, more countries have decided to take steps to combat private corruption aggressively within and beyond national borders. The United States and United Kingdom have differing but equally forceful means of combating private corruption. In Latin America, certain countries have been taking up the mantle of passing legislation that criminalises private corruption, though the success of implementing these reforms has been varied across jurisdictions. With growing international interest in preventing and penalising private corruption, companies should meticulously design policies and procedures to detect and eliminate corrupt practices.
 Ben O’Neil is a partner and Francesca Wool is an associate at Quinn Emanuel LLP.
 Boles, Jeffrey R, ‘The Two Faces of Bribery: International Corruption Pathways Meet Conflicting Legislative Regimes’, 35 Mich. J. Int’l L. 673 (2014) < https://repository.law.umich.edu/mjil/vol35/iss4/1>.
 Campos, J Edgardo; Pradhan, Sanjar, ‘The Many Faces of Corruption: Tracking Vulnerabilities at the Sector Level’, The International Bank for Reconstruction and Development/The World Bank (2007) < https://openknowledge.worldbank.org/bitstream/handle/10986/6848/399850REPLACEM1010FFICIAL0USE0Only1.pdf?sequence=1>; see also Antonikova, N, ‘Private Sector Corruption in International Trade: The need for heightened reporting and a private right of action in the Foreign Corrupt Practice Act’, 11 Brigham Young Int’l Law & Mgmt Rev. 1 (2015).
 Deloitte Development LLC, ‘Look before you leap: Navigating risks in emerging markets’, 1, 5 (2012) < www.deloitte.com/assets/Dcom-UnitedStates/Local%20Assets/Documents/FAS_ForensicCenter_us_fas-us_dfc/us_fas_lbyl_navigating_risks_in_emerging_markets_102412.pdf>.
 See Boles (footnote 2, above).
 id.; see also Johannsen, L; et al., ‘Private-to-private corruption: Taking business managers’ risk assessment seriously when choosing anti-corruption measures’, 2016 OECD Integrity Forum (April 2016); Sartor, Michael A; Beamish, Paul W, ‘Private Sector Corruption, Public Sector Corruption and the Organizational Structure of Foreign Subsidiaries’, J. of Bus. Ethics: 1 to 20 (4 April 2019).
 See Sartor and Beamish (footnote 7, above).
 See Boles (footnote 2, above).
 UN Office on Drugs and Crime, UN Convention against Corruption [UNCAC] (2004) < https://www.unodc.org/unodc/en/corruption/tools_and_publications/UN-convention-against-corruption.html>.
 The Inter-American Convention Against Corruption (1996) and the United Nations Convention against Transnational Organized Crime and the Protocols Thereto (2004), for example, only address public corruption < www.oas.org/en/sla/dil/inter_american_treaties_B-58_against_Corruption.asp> < https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf>.
 Moyer, H, Anti-Corruption Regulation 2019, Getting the Deal Through, Law Business Research (2019) < https://gettingthedealthrough.com/area/2/jurisdiction/16/anti-corruption-regulation-mexico/>.
 UN Office on Drugs and Crime, The Global Programme against Corruption: UN Anti-Corruption Toolkit (3rd Edition 2004) < https://www.un.org/ruleoflaw/files/UN_Anti%20Corruption_Toolkit.pdf>.
 See map showing UNCAC Signature and Ratification Status < https://www.unodc.org/documents/treaties/UNCAC/Status-Map/UNCAC_Status_Map_Current.pdf>.
 See Boles (footnote 2, above).
 Simões, P; et al, ‘Motivações e efeitos da corrupção privada – que no Brasil ainda não é crime’ (29 July 2019); Instituto Compliance Brasil; Council Framework Decision 2003/568/JAI of 22 July 2003 < https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32003F0568&from=en>.
 Beltrán, M, ‘Colombia –Global bribery offenses guide’, DLA Piper (4 December 2019) < https://www.dlapiper.com/en/global/insights/publications/2019/09/bribery-offenses-guide/colombia/>; Valderrama, F; Rodriguez, L, ‘Protected legal interest in private corruption felony in Colombia: Systemic analysis and connection with the unfair competition law’, Revista del Instituto de Ciencias Jurídicas de Puebla: No. 35, 159 (22 September 2014) < https://www.redalyc.org/pdf/2932/293242147009.pdf>.
 UNCAC Executive Summary, Colombia (15 October 2014) < https://www.unodc.org/documents/treaties/UNCAC/WorkingGroups/ImplementationReviewGroup/ExecutiveSummaries/V1406898-1e.pdf>; ‘Principales Tipologías de Corrupción en Colombia’, United Nations Office on Drugs and Crime and Fiscalía General de la Nación (November 2018) < https://www.fiscalia.gov.co/colombia/wp-content/uploads/Tomo-VIII.pdf>.
 See ‘Principales Tipologías de Corrupción en Colombia’ (footnote 20, above).
 Ley Contra la Corrupción y para la Salvaguarda del Patrimonio Público, Transparencia Venezuela < https://transparencia.org.ve/project/ley-contra-la-corrupcion-y-para-la-salvaguarda-del-patrimonio-publico/; Zajia, M; et al., ‘Anti-Corruption in Venezuela’, Global Compliance News, Baker McKenzie Venezuela < https://globalcompliancenews.com/anti-corruption/anti-corruption-in-venezuela/>.
 Cousiño, F; et al., ‘Corrupción entre privados es ahora delito en Chile’, Alessandri Abogados (22 November 2018) < https://www.alessandri.legal/corrupcion-entre-privados-es-ahora-delito-en-chile/; Izquierdo, L, ‘Chile continúa su avance en materias de anticorrupción’, PwC Chile < https://www.pwc.com/cl/es/Publicaciones/Chile-continua-su-avance-en-materias-de-anticorrupcion.html>; Ley Núm. 21.121, Biblioteca del Congreso Nacional de Chile < https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/108068/133368/F-1931174227/LEY-21121_CHILE.pdf>.
 See Cousiño (footnote 24, above).
 Cabello, A; Santos, D, ‘Anti-Corruption Proposals for the Mexican Energy Sector’, Wilson Center Mexico Institute (2016) < https://www.wilsoncenter.org/publication/anti-corruption-proposals-for-the-mexican-energy-sector>; Rodríguez, A, ‘Emprendedurismo y Corrupción’, La Corrupción en México: Transamos y No Avanzamos (2015), Instituto Mexicano para la Competitividad.
 Kaiser, M; Rios, V, ‘Mexico’s Anti-Corruption Spring’, The Missing Reform: Strengthening The Rule of Law in Mexico, Wilson Center Mexico Institute (2018) < https://www.wilsoncenter.org/sites/default/files/media/documents/publication/the_missing_reform_strengthening_the_rule_of_law_in_mexico.pdf>.
 Chavez, C; et al., ‘Mexico’s national anti-corruption system: The politics of integrity’, Westlaw Journal White-Collar Crime: 33 No. 02, 03 (2018); Hinjosa, G; Meyer, M, ‘The Future of Mexico’s National Anti-Corruption System’, Report, ‘WOLA: Advocacy for Human Rights in the Americas (August 2019).
 See Hinjosa and Meyer (footnote 28, above).
 See Kaiser and Rios (footnote 27, above).
 See Chavez (footnote 28, above).
 See Chavez (footnote 28, above).
 See Kaiser and Rios (footnote 27, above).
 See Chavez (footnote 28, above).
 See Kaiser and Rios (footnote 27, above).
 Adams, J; Castillo-Lopez, L, ‘Mexico’, The Anti-Bribery and Anti-Corruption Review, Edition 8 (2019) < https://thelawreviews.co.uk/edition/the-anti-bribery-and-anti-corruption-review-edition-8/1210830/mexico>.
 See Kaiser and Rios (footnote 27, above).
 See Moyer (footnote 13, above).
 See Hinjosa and Meyer (footnote 28, above); see also Chavez (footnote 28, above).
 See Chavez (footnote 28, above).
 See Hinjosa and Meyer (footnote 28, above); see also ‘Se publica en el Diario Oficial de la Federación el Acuerdo por el que se Instala la Fiscalía Especializada en Combate a la Corrupción’, Sistema Nacional Anticorrupción < https://sna.org.mx/2019/03013305/; see also https://www.gob.mx/fgr/estructuras/maria-de-la-luz-mijangos-borja; see also https://www.milenio.com/policia/emilio-lozoya-odebrecht-fgr-gira-orden-aprehension-director-pemex; see also https://www.elsoldemexico.com.mx/mexico/justicia/investigacio-de-estafa-maestra-esta-en-la-ultima-etapa-uif-3974929.html>.
 See Simões (see footnote 19, above); see also Frazão, F, ‘Projeto prevê criminalizar corrupção privada no País’, Estadão (14 July 2018) < https://politica.estadao.com.br/noticias/geral,projeto-preve-criminalizar-corrupcao-privada-no-pais,70002401821>.
 ‘FIFA bans convicted Brazilian soccer official Marin for life’, Associated Press (15 April 2019) < https://www.dailyherald.com/article/20190415/sports/304159944>; see also ‘Fifa corruption: Brazil’s José Maria Marin jailed for four years’, BBC (22 August 2018). Available at: https://www.bbc.com/sport/football/45277581.
 See Frazão (footnote 45, above).
 Prado, R, ‘Clawback Corrupção Privada e as Novas Medidas Contra a Corrupçã’, Consultor Penal (16 November 2018).
 CMS Guide to Anti-Bribery and Corruption Laws (June 2018).
 Ayres, C, ‘Anti-Bribery in Brazil: 2017 Developments’, FCPA Américas (2018) < https://fcpamericas.com/english/anti-money-laundering/anti-bribery-brazil-2017-developments/#>.
 Novas Medidas Contra a Corrupção, Transparencia Internacional (2019).
 See Prado (footnote 48, above).
 ‘Arcabouço normativo para prevenção e combate à fraude na saúde suplementar no Brasil’, Instituto de Estudos de Saúde Suplementar (November 2018) < https://www.iess.org.br/cms/rep/Arcabouco_Normativo_FINAL.pdf>.
 See Instituto de Estudos de Saúde Suplementar (footnote 54, above).
 Law No. 9279 of 1996, Article 195, Paragraphs IX and X.
 See Simões (footnote 19, above).
 PL No. .236/2012 < https://www25.senado.leg.br/web/atividade/materias/-/materia/106404>.
 Teixeira, A, ‘Considerações introdutórias sobre o crime de corrupção privada’, Comentários ao Direito Penal Econômico Brasileiro, 534; see also www.criminal.mppr.mp.br/arquivos/File/Acao5_Memoria_1_Reuniao_13_03_18.pdf.
 See Teixiera (footnote 60, above), at 533 to 534.
 Law No. 9279 of 1996, Article 195, Paragraphs IX and X.
 Article 5, Paragraph XXXXIX.
 As of 2017, US states with commercial bribery statutes include Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Dakota, North Carolina, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah, Virginia, Washington and Wisconsin. UNCAC Executive Summary, United States of America (June 2012) < https://www.unodc.org/documents/treaties/UNCAC/WorkingGroups/ImplementationReviewGroup/18-22June2012/V1251970e.pdf>; see also Rendleman, D, ‘Commercial Bribery: Choice and Measurement Within a Remedies Smorgasbord’, Washington & Lee Law Review, Vol. 74 (2017), 369 < https://scholarlycommons.law.wlu.edu/wlulr/vol74/iss1/7>.
 New York Penal Code, Section 180.03 < https://www.nysenate.gov/legislation/laws/PEN/180.03>.
 UNCAC Executive Summary (footnote 64, above) at 13.
 Ala’i, Padideh, ‘The United States’ Multidimensional Approach to Combatting Corruption’, Articles in Law Reviews & Other Academic Journals, 316 (2015) < https://digitalcommons.wcl.american.edu/facsch_lawrev/316>.
 18 USC §1951 amendment to 1934 Anti-Racketeering Act.
 See Moyer (footnote 13, above) at 157; see also Ala’i (footnote 66, above).
 See UNCAC Executive Summary (footnote 64, above), at 13.
 Green, S, ‘Official and Commercial Bribery: should they be distinguished?’, Cambridge University Press (2005), at 43 to 44 .
 See Moyer (footnote 13, above), at 157.
 See Ala’i (footnote 67, above).
 18 USC §§ 1341, 1343 and 1346. Section 1341 makes it a crime to use the mail to execute a ‘scheme or artifice to defraud’ or to obtain money or property through false or fraudulent pretences, representations or promises. Section 1343 makes it a crime to use interstate wire communications, such as telephone, internet, television or radio transmissions, to do the same. Section 1346 provides that a ‘scheme or artifice to defraud’ includes a ‘scheme or artifice to deprive another of the intangible right of honest services’. See Green (footnote 71, above), at 44.
 See Moyer (footnote 13, above), at 157; see also 18 USC §§ 1341, 1343, 1346 (2006).
 See Moyer (footnote 13, above), at 157; see Congressional Research Service, ‘Bribery, Kickbacks and Self-Dealing’ (30 January 2019) at 22 < https://fas.org/sgp/crs/misc/R45479.pdf>; see also Green (footnote 71, above), at 44; Dechert LLP, ‘Private Commercial Bribery: The Next Wave of Anti-Corruption Enforcement?’, at 4 (April 2010); see also United States v. Pasquantino, 544 U.S. 349 (2005) (holding that a plot to defraud the government of Canada of tax revenue violated the wire fraud statute); see also Shushan v. United States, 117 F.2d 110 (5th Cir. 1941).
 Skilling v. United States, 561 US (2010).
 Pak, B, ‘Private Sector Honest Services Fraud Prosecutions After Skilling v. United States’, 66 DOJ J. Fed. L. & Prac. 149, 152 (2018); see also Schwartz, M; Zack, J, ‘A New Federal Theory of Corruption?’, Boies Schiller Flexner LLP (11 December 2017) < https://www.bsfllp.com/news-events/a-new-federal-theory-of-corruption.html>; Ruiz, R, ‘2 Top Soccer Officials Found Guilty in FIFA Case’, The New York Times (22 December 2017) < https://www.nytimes.com/2017/12/22/sports/soccer/fifa-trial.html>.
 Clark, S, ‘New Solutions to the Age-Old Problem of Private-Sector Bribery’, Minnesota Law Review, Vol. 378 (2013) at 2294, 2318 < https://scholarship.law.umn.edu/mlr/379> (arguing that the FCPA should be amended to include private-sector bribery).
 See Dechert LLP (footnote 79, above), at 4.
 As opposed to highly regulated or bureaucratic countries, where public corruption is a greater risk – see https://latinlawyer.com/chapter/1177364/anti-corruption-in-latin-america.
 ‘Guide to Combating Corruption & Fraud in Development Projects – Potential Scheme: Bribes and Kickbacks’, International Anti-Corruption Resource Center (2020) < https://guide.iacrc.org/potential-scheme-bribes-and-kickbacks/>.
 See Johannsen (footnote 7, above).
 ‘Five Types of Kickback Fraud’, The Whistleblower Lawyer < https://www.thewhistleblowerlawyer.com/five-kickback-fraud/>; Koukios, J; et al., ‘Anti-Corruption in Latin America’, The Guide to Corporate Crisis Management, First Edition (28 November 2018), Latin Lawyer, Law Business Research < https://latinlawyer.com/chapter/1177364/anti-corruption-in-latin-america>.
 See Campos and Pradhan (footnote 4, above), at 174.
 Auditing and Investigating Fraud Seminar, Association of Certified Fraud Examiners (2012) < https://www.fraudconference.com/uploadedFiles/Fraud_Conference/Content/Course-Materials/presentations/23rd/ppt/post-Aud02-Corruption.pdf>.
 See Johannsen (footnote 7, above).
 ‘Could Kickbacks Happen at Your Company’ (March 2017), Dulin, Ward & Dewald, Inc < https://dwdcpa.com/blog/could-bribery-and-kickbacks-happen-at-your-company/>.
 Rose-Ackerman, S, ‘Measuring Private Sector Corruption’, 5 U4 Anti-Corruption Resource Centre (September 2007) < https://www.cmi.no/publications/2755-measuring-private-sector-corruption>.
 Peace, B, ‘Roundtable: Lava Jato and Its Impact on Investigations in Latin America’, The Guide to Corporate Crisis Management, First Edition (28 November 2018), Latin Lawyer, Law Business Research < https://latinlawyer.com/chapter/1177365/roundtable-lava-jato-and-its-impact-on-investigations-in-latin-america>.