Several jurisdictions have undertaken initiatives to strengthen their institutional and legal frameworks and established mechanisms for the return of assets derived from corrupt activities, by criminalizing and listing corruption as a predicate offence for money laundering offences.  In the case of bribing foreign officials and embezzlement of public funds in developing jurisdictions, however, there may be difficulties in the confiscation and repatriation of corruption proceeds.  

Prosecution legislative provisions tend to focus on the bribe payer rather than the receiver, for example neither the UK Bribery Act or the United States Foreign Corrupt Practices Act (“FCPA”) impose liability on a Foreign Public Official recipient of a bribe, one must ask how is this problem to be effectively addressed when the bulk of the beneficiaries of corruption are in effect untouchable. 

The UK Bribery Act came into force on 1 July 2011. The Act repeals and replaces England's existing laws on bribery with a new comprehensive anti-bribery code, it does not however make provision for the recovery or repatriation of proceeds of corruption as such, rather creating offences and proscribing penalties in the form of fines and prison sentences.  

While such initiatives are to be welcomed and the new Act does contain some novel provisions for attributing liability, its main targets (as is the case with the FCPA) are those paying the bribes to obtain a benefit, however on the other side of the coin are those that received the bribes for their own use and not for the benefit of those they serve.  This is theft plain and simple, how do we address this problem? 

Repatriating corruption proceeds from overseas requires, in the main, complex financial analysis and will invariably involve mutual legal assistance requests from foreign jurisdictions (e.g. offshore centres where relevant accounting and banking records are situate). This can be an expensive, resource intensive and time consuming exercise. An alternative is the pursuit and recovery of the proceeds of corruption via civil litigation.  

What is needed is a global consensus that the proceeds of corruption are, wherever they are to be found, held on trust for those with the superior entitlement to them, the peoples of those nations that have been impoverished and enslaved by the evils of corruption.  The developed world bears a responsibility to those people and those nations, the vast majority of corrupt proceeds flow through and come to rest in financial institutions in the developed world.  Havens like Switzerland, Lichtenstein and so on have provided refuge for the illegally obtained and retained funds of corrupt officials for years.  Recent developments show how pressure can be brought to bear on previously reluctant information providers. That same pressure could yield results in the context of the fight against corruption.