Wednesday, May 5, 2010
Guest Bloggers - Catherine L. Razzano, Margaret Ryznar (Cadwalader, Wickersham & Taft LLP)
Following extensive efforts to reform its approach to bribery, the United Kingdom last month enacted new bribery legislation—the Bribery Act 2010.
The Bribery Act replaces the common law offenses with two general bribery offenses, a specific offense for the bribery of foreign government officials, and a specific offense of corporate negligence. The critical components of these offenses include: (1) commercial bribery of private business officials; (2) bribery applicable to both individuals and corporations, both of whom are directly liable for the actions of their agents; (3) liability for corporations and partnerships for the "failure to prevent bribery;" and (4) extra-territorial jurisdiction to prosecute bribery committed abroad by persons ordinarily resident in the United Kingdom, as well as U.K. nationals and U.K. corporations. Two other important features include (i) replacing the existing requirement for the Attorney General’s consent to prosecute bribery with the consent of the Director of the relevant prosecuting authority; and (ii) instituting a maximum penalty of 10 years imprisonment for all new offenses and unlimited fines for violations of the corporate offense for failing to prevent bribery.
The Act makes it an offense for a person (or an agent of that person) to offer, promise or give "a financial or other advantage" to another person with the intention of inducing that person to perform "improperly" a function or activity. Similar to the U.S. Foreign Corrupt Practices Act, "financial or other advantage" is left to be determined "as a matter of common sense by the tribunal of fact" and is not clearly defined. The "function or activity" is defined broadly by the proposed legislation in that it applies equally to public and private sector business and includes all activities performed either in the course of employment or on behalf of an individual. However, not every improper performance of a function or activity will violate the general bribery offense. Rather, section 3(3) of the Act clearly states the function or activity be performed in good faith, which is akin to the U.S. notion of acting in good faith, except that a reasonable person test will be applied in determining whether the performance was improper. The recipient of a bribe will also be guilty of an offense if that person requests, agrees to receive or accepts an "advantage" in the aforementioned circumstances.
Meanwhile, the separate offense of bribery of a foreign public official (including, among others, agents of the foreign public official and individuals working for international organizations) closely tracks the elements of the bribery offense contained in recommendations of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. As defined in the Act, the bribe payer must intend to influence the recipient of the bribe in order to obtain or retain business or an advantage in conducting such business. Interestingly, liability is not determined by whether or not the action sought from the foreign public official is improper but whether the advantage is permissible under the law applicable to the foreign public official (and not merely customary or widely accepted practices).
Of all the changes to the current bribery legislation in the United Kingdom, the offense of failing to prevent bribery by companies is the most novel. Under this offense, a commercial organization or company commits a crime if (a) a person performing services on behalf of the company (including employee, agent, or employee or agent of a subsidiary) bribes another person with the intent to obtain or retain business, or an advantage in business, for the organization, and (b) the bribe is in connection with the company’s business. Individual prosecution for bribery is not necessary for this offense to apply to the company, provided that the agent or employee is or would be guilty of the offense of giving or offering a bribe.
The Act further provides that it is a defense if a company can demonstrate "adequate procedures designed to prevent [bribery]." As noted by the Ministry of Justice, the corporate offense is "not regulatory in nature and there will be no monitoring of compliance." The Ministry has also proclaimed that there is no "one size fits all approach" to compliance and that they do not intend "to prescribe the anti-bribery measures to be taken." Section 9 of the Act requires the Secretary of State to publish guidance about procedures that relevant commercial organizations can put in place to prevent persons from committing acts of bribery. That guidance, however, has yet to be published.
(clr & mr)