Anti-Corruption in Thailand: new amendment strengthens rules on corporate bribery

In this article, we examine Thailand’s newly amended anti-corruption laws, highlighting the new offences introduced and new powers granted to its local anti-corruption commission.

Thailand’s amendments to its anti-corruption laws bring the country into line with the 2003 UN Convention Against Corruption. The amendments introduce new offences for bribery involving foreign government officials and international organisations, as well as new powers for the National Anti-Corruption Commission (NACC) and the Thai courts.

The amendments also introduce specific liabilities for companies that benefit from bribes made by employees, affiliates and agents, irrespective of whether or not they had the authority to act on the company’s behalf. A company can be fined up to twice the amount of damage incurred or benefit received.

Companies with operations in Thailand therefore need to ensure they have robust anti-bribery and corruption policies in place, and that staff, as well as external agents and contractors are made aware of these, and receive appropriate training. We look at the amendments in further detail below.

Prior to the amendments, bribery offences covered under the Organic Act on Counter Corruption B.E. 2542 (OACC) applied to only Thai government officials. The amendments expanded the scope of offences to include foreign government officials and international organisations. Specifically, it is an offence under the OACC for:

• a ‘foreign official’ to seek, accept or agree to accept a bribe (including any bribe sought, accepted or which he or she agreed to accept before holding the relevant official position) to act or omit to act in his/ her official capacity
• an intermediary (agent) to seek, accept or agree to accept any benefit with a view to influencing the decision or action of a ‘foreign official’
• any person to offer or agree to offer a bribe to any ‘foreign official’ to induce any action, omission or delay in acting, which is contrary to the official’s duties.

Under the amendments, foreign officials is defined to include any person working for a foreign government or foreign state enterprise or any person working in or on behalf of an international organisation (such as NGOs), but not private corporations.

The prescribed penalties for bribery offences involving either a Thai government official or foreign official are similar to existing penalties for bribery under the Thai Penal Code (Penal Code). The following table compares the penalties under OACC and under the Penal code, which only applies to Thai officials.

Generally, it is easier for the NACC to enforce the OACC than the Penal Code as, for instance, NACC can directly investigate and (if it chooses) prosecute cases under the OACC. Most of the offences under the Penal Code are investigated by the police and prosecuted by the public prosecutor.

The amendment also introduce a strict liability offence for any company which benefits from a bribe by a ‘related person’, which includes an employee, agent, affiliate or any person acting for or on behalf of the company, irrespective of whether or not the related person has the authority to act. The offence does not require any intention on the part of the company to make the bribe.

The prescribed penalty for bribery is a fine of up to twice the amount of damage incurred or benefit received.

A company charged with bribery by a related person will have a defence if it can prove that it has in place ‘appropriate’ internal controls to prevent the bribe. There is no official guidance as to what would constitute ‘appropriate’ internal controls in this context.

Along with the new bribery offences involving foreign government officials and international organisations, the NACC has also been given additional powers to:

• investigate offences in respect of foreign officials and the discretion to refer the matter to the public prosecutor or to directly bring enforcement action in court
• investigate and make a ruling on offences under its jurisdiction committed outside of Thailand (e.g. offences under the Penal Code, where Thai government officials are alleged to have accepted bribes abroad)
• assist other countries’ authorities in their corruption investigations.

The Thai courts have also been given additional powers to:

• confiscate money or other benefits (including proceeds from disposing or transferring such benefits) received by any person who has been found guilty of an offence under the OACC
• confiscate money being offered to officials as bribes
• order any person who has been found guilty of an offence under the OACC to pay to the court an amount equal to the benefits received.

The amendments also provide for the suspension of the statutory limitation period for offences committed by politicians where the politician flees during prosecution or after having been found guilty by a final judgment of the court.