The Bribery Act 2010 (UK) was passed by the UK
Parliament on 8 April 2010 and is expected to progressively come
into force from May. Because of its extraterritorial operation, it
may have serious ramifications for Australian corporations which
conduct some business activities in the UK. The offence of failing
to prevent bribery applies to conduct of corporations outside the
UK if the corporation (or partnership) carries on a business or
part of its business within the UK even if that part of the
business has no connection with the circumstances under which the
bribery may have occurred.
The main offences under the Bribery Act are:
Direct or indirect offers of financial or other advantage
intended to secure improper performance by any person of private or
public functions and activities.
Requests for, or the improper acceptance of, financial or other
advantage to secure improper performance by any person of private
or public functions or activities (Ss1-5).
The bribery of a foreign official (which includes officials of a
public international organisation). This offence is not dependent
on improper performance. Instead, the key elements of the offence
are: an intention to influence a foreign official in his official
capacity; an intention to obtain/retain business, or to secure an
advantage in the conduct of business; and the relevant act or
omission is not permitted by local written law (or the rules of a
public international organisation) S.6.
A commercial organisation's failure to prevent Bribery
by an associated person providing it with services is made a strict
liability offence subject to a defence that adequate procedures
were put in place to prevent that conduct (Ss.7-8). It is not
necessary that an associated person should have been prosecuted
(S.7 (3)). The meaning of services falls to be determined by
reference to all the relevant circumstances (s8 (4)), but an
employee will be presumed to be providing services for an employer.
(s.8 (5)) Guidelines are to be published about procedures that
should be put in place to ensure prevention (S.9) but there remains
considerable uncertainty about what would constitute an adequate
procedures defence, especially in cases involving conduct of an
agent, distributor, sub-contractor or joint venturer. Officers of a
company may commit an individual offence in respect of corporate
It is vital that a corporation which conducts business in the UK
ensures that it subscribes to and enforces anti-bribery policies
that are sufficient to satisfy the "adequate procedures"
requirements of the Act. In practice, this will require those
corporations to show that they have carried out appropriate due
diligence such as regular auditing and monitoring of agents,
distributors, joint venturers, subcontractors and franchisees.
Clients should therefore consider:
the adequacy of their codes of conduct and compliance
their anti-corruption supervisory and reporting lines - do they
have an internal anti-corruption committee with reporting
their communication and training
their due diligence - selection and appointment of third
their due diligence - mergers and acquisitions
their whistle blowing systems
their remuneration structures
the implementation of their policies on gifts and corporate
hospitality (not limited to foreign public officials)
their disciplinary procedures
their investigation protocols.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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