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Far-reaching impact of UK Bribery Act 2010

The UK Bribery Act 2010 (the “Bribery Act”) is new legislation that will completely overhaul English laws on bribery and corruption. The far-reaching powers of the Bribery Act will not only have implications for individuals and companies operating within the United Kingdom, but for the first time will have implications for British and foreign companies that engage in business on an international scale.

The Bribery Act will criminalise the act of bribing another person, as well as the act of receiving a bribe, including offering, promising or giving (or requesting, agreeing to receive or accepting) a financial or other advantage with the intention that a function or activity will be performed improperly.

The bribe can be offered (or accepted) either directly or indirectly, through a third party. The term “advantage” is not defined, but the definition of “function or activity” is very broad. As long as the function or activity is one that is expected to be performed in good faith, performed impartially, or the person performing it is in a position of trust, all functions or activities that are:

l of a public nature;

l connected with a business;

l performed in the course of a person's employment; or

l performed by or on behalf of a body of persons (whether or not incorporated)

l are captured by the Bribery Act.

The offences apply to any company that carries on a business, or part of a business, in the UK, and relates to the whole of the company's international operations. This means that any company having a subsidiary or branch office in the UK, or even merely listing shares in the UK but not otherwise being present in the UK, could potentially be caught under the Bribery Act.

Additionally, individuals and companies with a “close connection” with the UK may be caught under the Bribery Act. The legislation defines a “close connection” as:

l A British citizen

l A British Overseas Territories citizen

l A British National (Overseas)

l A British Overseas citizen

l A person who under the British Nationality Act was a British subject

l A British protected person within the meaning of that Act

l An individual ordinary resident in the UK

l A body incorporated under the law of any part of the UK

l A Scottish partnership

Those who are found guilty of carrying out acts of bribery may face harsh penalties under the Bribery Act. These penalties include up to ten years in prison or unlimited fines for certain offences.

Bribing or offering to bribe a foreign public official will also be caught under the Bribery Act, which defines a “foreign public official” as an individual who either:

l holds a legislative, administrative or judicial position in a foreign country;

l exercises a public function for or on behalf of a foreign country or for any public agency or enterprise of that country; or

l is an official or agent of a public international organisation.

To be guilty of the offence, the person offering the bribe must intend to influence the official in his official capacity and intend to obtain or retain either business or an advantage in the conduct of business. In addition, the bribe must be illegal under the written law applicable in the official's territory.

Like the general bribery offences discussed above, the bribe of a foreign public official must either take place in the UK or the person offering the bribe must have a “close connection” with the UK.

The Bribery Act creates a particularly strict vicarious corporate liability for acts of bribery. A company is guilty of an offense under the Bribery Act if an “associated person” within the company bribes another person intending to obtain or retain business or an advantage in the conduct of business for the company. The company may be liable for this offence irrespective of whether the employees or officers of the company had any knowledge of the bribery. Furthermore, the bribe giving rise to the liability can occur anywhere in the world.

If a company can prove that it had “adequate procedures” in place specifically designed to prevent its associates and employees from engaging in bribery, then the company will not be liable under the Bribery Act. What constitutes “adequate procedures” is not defined, but it is thought that the UK authorities will hold companies to a high standard. Accordingly, a company's policies and procedures will effectively be its only line of defence when bribes are paid on its behalf. The UK Government is required to provide statutory guidance on what constitutes adequate procedures. Although a draft of the guidelines was issued in September 2010 it has not been finalised and has caused a delay in the implementation of the Bribery Act, which was originally expected to come into effect in April 2011.

There is no doubt that the Bribery Act will be far reaching and will apply to corporate and unincorporated entities, all trades, and professions. Accordingly, any company that has a UK connection, wherever it does business, cannot afford to ignore the Bribery Act. The criminal offense of failing to prevent bribery will have enormous consequences for any company that has any kind of presence in the UK, however minor that presence may be.

It is yet to be seen how the new Bribery Act will be implemented and enforced in the UK; however, companies, especially those with even minimal connections to the UK, should begin reviewing and possibly revising their anti-bribery programmes to ensure that they are compliant when the Bribery Act comes into force.

Attorney Adam Collieson is a member of the Litigation and Insolvency Practice Group at Appleby. A copy of Mr. Collieson's column can be obtained on the Appleby website at www.applebyglobal.com.

This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.

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Published March 21, 2011 at 2:00 am (Updated March 21, 2011 at 9:24 am)

Far-reaching impact of UK Bribery Act 2010

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