Thailand: Anti-Corruption Compliance

The Office of the National Anti-Corruption Commission (NACC) has published “Guidelines on Appropriate Internal Control Measures for Juristic Persons to Prevent Bribery of State Officials, Foreign Public Officials, and Agents of Public International Organizations”. The guidelines offer helpful instructions to companies regarding the interpretation of Sec. 123/5 of the Act on Counter Corruption (ACC), especially the contents of an internal compliance system ensuring that employees do not engage in acts of bribery.

1. Sec. 123/5 ACC

Sec. 125/5 ACC reads as follows (translated):
 

“Whoever grants, offers to grant, or promises to grant any property or other benefits to any state official, foreign state official, agent of a public international organization with intent to persuade such person to wrongfully perform, not perform or delay the performance of any duty in his office shall be subject to an imprisonment for a term not exceeding 5 years or a fine not exceeding Baht 100,000, or both.
  
If the offence under paragraph one is committed by any person related to any juristic person and the action is taken for the benefit of such juristic person, and the juristic person does not have in place appropriate internal control measures to prevent the commission of such offence, the juristic person shall be deemed to have committed the offence under this section and shall be subject to a fine of one to two times of the damages caused or benefits received.
  
 A person related to the juristic person under paragraph two shall mean an employee, a representative, an affiliated company, or any person acting for or on behalf of such juristic person, regardless of whether having the power or authority to take such action.”

In a nutshell, a juristic person will be liable if its representatives or associated persons bribe public officials in any position (local or foreign) for corporate benefits, unless the juristic person does have an adequate internal control measures to prevent such acts of bribery.
 
Thus, the main question is: What establishes appropriate internal control measures? The new guidelines on the “liability of legal persons involved in the bribery of a public official“ provide an answer to this question.

2. New Guidelines  

Juristic persons will have to establish an internal compliance system, containing the following elements:
 

• clear and visible policy supported by top-level management;
• risk assessment to identify exposure;
• adoption of enhanced measures for high-risk areas;
• application of anti-bribery measures to business partners;
• keeping accurate books and accounting records;
• policies of human resources should support anti-bribery measures;
• providing whistleblowing measures to allow reporting of suspicions of bribery; and
• Review and evaluation of anti-bribery measures.
   

3. Conclusion

Thailand is adopting stricter anti-corruption measures since the ratification of the United Nations Convention against corruption in 2011. Companies face criminal liability for bribery committed by employees since the introduction of Sec. 123/5 ACC. Therefore, companies are well advised to establish anti-corruption compliance systems, especially if they engage in areas where bribery is rather common. The system should include all aspects mentioned in the guidelines. Please note that the NACC has established a hotline allowing anybody (e.g. competitors in a bidding) to inform the authorities of potential violation of Thailand’s anti-corruption laws.