The National Anti-Corruption Commission (NACC), Thailand’s anti-corruption agency, has issued a new resource document called “Guidelines on Appropriate Internal Control Measures for Juristic Persons to Prevent Bribery of State Officials, Foreign Public Officials, and Agents of Public International Organizations” (“guidelines”).
The guidelines clarify section 123/5 of the Organic Act on Counter Corruption B.E. 2542 (1999). Section 123/5 provides that corporate entities are criminally liable for bribing government officials – but if an organization has appropriate “internal controls” in place, liability can be mitigated, or even eliminated. The guidelines spell out what the NACC considers appropriate internal controls for the purposes of section 123/5.
The internal controls contained in the guidelines consist of eight core elements of an anti-corruption compliance program. They are:
demonstrable support by senior management to combat bribery in the organization (i.e. the “tone from the top”);
anti-corruption risk assessments;
internal anti-corruption measures, such as policies and procedures, to address high-risk areas;
application of anti-bribery compliance measures to business partners;
keeping accurate books and accounting records;
human resource policies to combat corruption;
mechanisms to report possible bribery incidents within an organizations (e.g. whistleblowing); and
periodic reviews and evaluations of the organization’s anti-bribery measures (e.g. audits).
In addition to the controls above, the guidelines provide helpful commentary on section 123/5, along with case studies on how the anti-corruption law may be applied. One particularly relevant comment is that a company representative, such as an authorized director, can be held liable along with the organization for bribery offenses if he or she is involved in the bribe – even if indirectly. For example, a company director who approves an employee’s improper payment to a state official would be deemed liable. But the director would not be liable if an employee pays a bribe without the director’s knowledge.
Another important development in the guidelines is the introduction of the NACC “anti-corruption hotline,” through which any member of the public can report private sector incidents of corruption directly to the NACC by phone or online. This hotline, along with the guidelines, shows a willingness by the NACC to more aggressively address bribery offenses committed by the private sector.