1. Trade Capacity Vietnam
Legal situation and Legislation relevant in Vietnam regarding Corruption
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What is Corruption

2. Corruption and Vietnam – is there an issue? (i)
Corruption is widespread throughout Vietnam. Vietnam’s control of corruption still lags behind other Asian countries
Vietnam ranks 113 out of 176, after Egypt and Ethiopia and just before Mali and Pakistan according to 2016 Corruption Perception Index
Sectors most affected by corruption are Police; Public administration; Health sector, Judiciary; Land management
Particularly aware of continuing corruption related to public procurement and contracting procedures
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What is Corruption

3. Corruption and Vietnam – is there an issue? (ii)
Vietnam has a comprehensive anti-corruption legal framework in comparison with other Asian countries
The anti-corruption legal framework has significantly improved after the adoption of the Anti-corruption Law in 2005 and the National Strategy on Anti-corruption to 2020
Anti-corruption has been moved up the political agenda in Vietnam
Vietnamese government has acknowledged the negative impact of corruption on both Vietnam’s future prosperity and the Party’s own legitimacy
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What is Corruption

4. Vietnam and the fight against Corruption
The President of Viet Nam on June 30, 2009 signed the approval for Vietnam's accession to the United Nations Convention against Corruption UNCAC (with certain reservations)
The accession means that Vietnam has become party to the global legal framework for cooperation in anti-corruption
In addition, Vietnam is a member of the ADB/OECD Anti- Corruption Initiative for Asia and the Pacific.
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What is Corruption

5. Major regulatory framework
United Nations Convention Against Corruption 2004
Law on Prevention and Combat of Corruption No. 55/2005/QH11 dated 29 November 2005, as amended by Law No. 01/2007/QH12 dated 4 August 2007 and Law No. 27/2012/QH13 dated 23 November 2012 (Anti-Corruption Law)
Decree No. 59/2013/ND-CP of the Government, dated 17 June 2013, detailing a number of Articles of the Anti- Corruption Law
Decision No. 64/2007/QD-TTg of the Prime Minister, dated 10 May 2007, on the Promulgation of the Regulations on Giving and Receiving Gifts and Returning Gifts Applicable to Agencies, Organisations and Units Using State Budget and Cadres, Civil Servants and Public Officials (Decision 64)
Decree No. 78/2013/ND-CP on Transparency of assets and income
Law on Public Official 22/2008/QH12
Penal Code No. 100/2015/QH13 dated 27 November 2015 (New Penal Code).
Decision No. 115/2008/QD-TTg promulgating the regulation on publicity of the management and use of state property at state agencies, public non-business units and organizations assigned to manage and use state property
Note that in 2015, Vietnam’s National Assembly passed the New Penal Code, which was to meant to take effect from 01 July 2016 and replace Penal Code No. 15/1999/QH10 dated 21 December 1999 (amended by Penal Code No. 37/2009/QH12 dated 19 June 2009). However, Vietnam’s National Assembly subsequently promulgated Resolution No. 144/2016/QH13 dated 29 June 2016 suspending the implementation of such New Penal Code for unspecified term due to certain drafting formality and consistency errors therein and has a plan to rectify such errors of the law. It is expected that the New Penal Code with revised provisions would soon take effect. This writing is updated based on the New Penal Code
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What is Corruption

6. Major regulatory framework
United Nations Convention Against Corruption 2004
Penal Code No. 15/1999/QH10, Chapter VI
Law on Anti-Corruption No. 55/2005/QH11, as amended by the Law No. 01/2007/QH12 and the Law No. 27/2012/QH13
Law on Public Official 22/2008/QH12
Decree No. 78/2013/ND-CP on Transparency of assets and income
Decree No. 59/2013/ND-CP elaborating some articles of Anti-corruption Law
Decision No. 115/2008/QD-TTg promulgating the regulation on publicity of the management and use of state property at state agencies, public non- business units and organizations assigned to manage and use state property
Decision No. 64/2007/QD-TTg promulgating the regulations on giving, receipt and hand-over of gifts by state budget-funded agencies, organizations and units and cadres, public employees and servant
Decree No. 107/2006/ND-CP on the responsibilities of heads of agencies, organizations and units for corruption occurring in their agencies , organizations and units
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What is Corruption

7. Art 3 states corrupt acts as
Embezzling properties;
Taking bribes;
Abusing positions or powers to appropriate properties;
Taking advantage of positions or powers while performing tasks or official duties for self-seeking interests;
Abusing powers while performing tasks or official duties for self-seeking interests;
Taking advantage of positions or powers to influence other persons for self-seeking interests;
Committing forgeries in work for self-seeking interests;
Offering bribes or bribe brokerage by persons with positions and/or powers to settle affairs of agencies, organizations, units or localities for self- seeking interests;
Taking advantage of positions or powers to illegally use state properties for self-seeking interests;
Harassment for self-seeking interests;
Failure to perform tasks or official duties for self-seeking interests;
Taking advantage of positions or powers to cover up law violators for self-seeking interests;
illegally hindering, intervening in examinations, inspections, auditings, investigations, prosecutions, adjudications or judgment executions for self-seeking interests.
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What is Corruption

8. A bribe under Vietnamese Law
Act Offering, promising or making or receiving a payment
Payment Money or anything of value (minimum threshold: VND 2 million (approx. EUR 100)
Recipient “People undertaking official duties” such as public servants, government officials, officers, managers of state-owned companies
Intent Induce or influence an act/omission or decision.
Maximum penalty Life imprisonment (giver) or death (recipient)
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What is Corruption

9. Features of bribery offences
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What is Corruption

10. High Profile Case East-West Highway project
Huynh Ngoc Sy: Former Deputy Director of Ho Chi Minh Transportation Department and Director of Japan-funded East-West Highway
PCI: Consulting contractor of East-West Highway project
In 2008, 4 Japanese PCI executives pleaded guilty in a Tokyo court to paying US$820,000 in bribes to Huynh Ngoc Sy
3 executives of PCI were convicted to 18 months in prison; PCI was ordered by the Tokyo court to be dissolved
Huynh Ngoc Sy was sentenced to life in prison in Vietnam (subsequently commuted to 20 years). Japan, Vietnam’s biggest ODA donor country, temporarily suspended ODA to Vietnam and requested Vietnam to combat corruption
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What is Corruption

11. Challenges e.g. of combating Corruption in India
Public servants have very wide discretionary powers, offering the opportunity to extort undue payments from companies and ordinary citizens.
The numerous bodies charged with combating corruption have conflicting mandates and suffer from a lack of qualified staff and funding.
The awarding of public contracts is notoriously corrupt, especially at the state level. Scandals involving high-level politicians have highlighted the payment of kickbacks in the healthcare, IT, and military sectors.
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What is Corruption

12. Challenges (2)
The deterioration of the overall efficiency of the government, protection of property rights, ethics, and corruption, as well as undue influence on government and judicial decisions, has resulted in a more difficult business environment.
ATTENTION: introduce group work on international legislation
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What is Corruption

13. UNCAC: UN Convention Against Corruption (1)
The first global legally binding instrument in the fight against corruption
Adopted by General Assembly resolution 58/4 of 31 October 2003 and entered into force on 14 December 2005
The objectives of the Convention are:
to promote and strengthen measures to prevent and combat corruption more efficiently and effectively
to promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery
to promote integrity, accountability, and proper management of public affairs and property
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What is Corruption

14. UNCAC: UN Convention Against Corruption (2)
Preventive anti-corruption policies and practices:
Each State Party shall, in accordance with the fundamental principles of its legal system, develop and implement or maintain effective, coordinated anticorruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability.
Each State Party shall endeavour to establish and promote effective practices aimed at the prevention of corruption.
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What is Corruption

15. UNCAC: UN Convention Against Corruption (3)
Preventive anti-corruption policies and practices
Each State Party shall endeavour to periodically evaluate relevant legal instruments and administrative measures with a view to determining their adequacy to prevent and fight corruption.
States Parties shall, as appropriate and in accordance with the fundamental principles of their legal system, collaborate with each other and with relevant international and regional organizations in promoting and developing the measures referred to in this article. That collaboration may include participation in international programmes and projects aimed at the prevention of corruption.
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What is Corruption

16. Forms of corruption as referred to UNCAC
The United Nations Convention against Corruption (UNCAC)
The United Nations Convention addressed various forms of corruption as well as activities that support corruption, for example, :
Bribery of national public official
Bribery of foreign public officials and employees between-Government (intergovernmental) institutions
Commercial bribery
Unfaithfulness in business
Unauthorized influence
Abuse of authority
Unlawful enrichment
Money laundering
Embezzlement
Obstruction of justice
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What is Corruption

17. UK Bribery Act (1)
This Act deals only with bribery – not other forms of white collar crime
Your organisation may be liable for failing to prevent a person from bribing on your behalf but only if that person performs services for you in business relations.
There is a full defence if you can show you had adequate procedures in place to prevent bribery.
Hospitality is not prohibited by the Act
Facilitation payments are bribes under the Act just as they are under the old law
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What is Corruption

18. When could my organisation be liable?
UK Bribery Act (2)
When could my organisation be liable?
Your organisation could be liable if a very senior person in the organisation (for example, a managing director) commits a bribery offence.
This person’s activities would then be attributed to the organisation.
Your organisation could also be liable where someone who performs services for it – like an employee or agent – pays a bribe specifically to get business, keep business, or gain a business advantage for your organisation.
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What is Corruption

19. FCPA: US Foreign Corrupt Practices Act (1)
Congress enacted the U.S. Foreign Corrupt Practices Act (FCPA or the Act) in 1977 in response to revelations of widespread bribery of foreign officials by U.S. companies.
The Act was intended to halt those corrupt practices, create a level playing field for honest businesses, and restore public confidence in the integrity of the marketplace.
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What is Corruption

20. FCPA: US Foreign Corrupt Practices Act (2)
The FCPA addresses the problem of international corruption in two ways:
the anti-bribery provisions, which are discussed below, prohibit individuals and businesses from bribing foreign government officials in order to obtain or retain business
the accounting provisions, impose certain record keeping and internal control requirements on issuers, and prohibit individuals and companies from knowingly falsifying an issuer’s books and records or circumventing or failing to implement an issuer’s system of internal controls
Violations of the FCPA can lead to civil and criminal penalties, sanctions, and remedies, including fines, disgorgement, and/or imprisonment.
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What is Corruption

21. FCPA: US Foreign Corrupt Practices Act (3)
Who Is Covered by the Anti-Bribery Provisions?
Three categories of persons and entities:
“issuers” and their officers, directors, employees, agents, and shareholders
“domestic concerns” and their officers, directors, employees, agents, and shareholders
certain persons and entities, other than issuers and domestic concerns, acting while in the territory of the United States
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What is Corruption

22. FCPA: US Foreign Corrupt Practices Act (4)
What Are the Potential Consequences for Violations of the FCPA?
Criminal Penalties:
Violation of anti-bribery provisions:
corporations and business entities are subject to a fine of up to $2 million
individuals, including officers, directors, stockholders, and agents of companies, are subject to a fine of up to $100,000 and imprisonment for up to five years
Violation of the accounting provisions:
corporations and other business entities are subject to a fine of up to $25 million
individuals are subject to a fine of up to $5 million and imprisonment for up to 20 years.
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What is Corruption

23. FCPA: US Foreign Corrupt Practices Act (5)
What Are the Potential Consequences for Violations of the FCPA?
Civil Penalties:
Violations of the anti-bribery provisions:
corporations and other business entities are subject to a civil penalty of up to $16,000 per violation
individuals, including officers, directors, stockholders, and agents of companies, are similarly subject to a civil penalty of up to $16,000 per violation, which may not be paid by their employer or principal.
Violations of the accounting provisions:
The Securities and Exchange Commission may obtain a civil penalty not to exceed the greater of (a) the gross amount of the pecuniary gain to the defendant as a result of the violations or (b) a specified dollar limitation.
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What is Corruption

24. FCPA: US Foreign Corrupt Practices Act (6)
What Are the Potential Consequences for Violations of the FCPA?
Collateral Consequences:
In addition to the criminal and civil penalties described above, individuals and companies who violate the FCPA may face significant collateral consequences, including suspension or debarment from contracting with the federal government, cross-debarment by multilateral development banks, and the suspension or revocation of certain export privileges.
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What is Corruption