UK: The Bribery Act 2010 - Impact On The Investment Funds Sector

Last Updated: 18 April 2011
Article by Eve Ellis

Background

The Bribery Act 2010 (the "Act") is scheduled to come into force on 1 July 2011. This note summarises the provisions of the Act and discusses in particular its effect on the investment funds industry. For a more general overview of the Act, please click here.

Overview of the main offences

The Act introduces four main offences and several sub offences. The first two offences involve the making and receiving of bribes, the third the bribery of foreign public officials and the fourth the corporate offence of failing to prevent bribery - the fourth proving to be the most controversial provision of the new Act, especially for the investment funds industry. As a consequence, the remainder of this note focuses on this offence.

Under the fourth offence, a commercial organisation will be guilty of failing to prevent bribery if an 'associated' person performing services on the organisation's behalf offers, promises or gives a financial or other advantage to another person with the intention of obtaining or retaining business or a business advantage for the organisation. An associated person could include employees, agents, joint venture partners, franchisees, introducers or subsidiaries. This is a strict liability offence and the organisation could be found guilty even where it played no role in, and had no knowledge of, the bribery. Organisations will however have a defence of proving that they had 'adequate procedures' in place designed to prevent bribery by those performing services on their behalf.

What is meant by 'adequate procedures'?

The Ministry of Justice (the "MOJ") has recently set out guidance on what procedures a commercial organisation can put in place to prevent it breaching the strict liability offence. These procedures must be based on six principles which should be considered and applied using a risk-based approach to management of the risk of bribery by a person associated with the organisation.

Of particular significance to the investment funds industry is principle 3, which requires an organisation to assess the nature and extent of its exposure to potential external and internal risks. External risks are categorised into 5 groups, including country risk and sectoral risk, which will require particular consideration by a fund manager in relation to the jurisdictions and markets it invests in.

Further details of the six principles set out by the MOJ are in Charles Russell's main client alert on the MOJ guidance which is available here.

What does this mean for the investment funds industry?

Whilst all financial institutions need to review their policies against the new Act (including any corporate hospitality and entertainment policies), investment funds and fund managers in particular, as well as reviewing their investment policies and portfolios generally, should consider which persons are 'associated' with them for the purposes of the Act.

UK funds (or funds connected with the UK) should bear in mind that a fund manager providing management services will be a person 'associated' with the fund for the purposes of the Act, potentially leaving the fund open to liability should it be prosecuted under the fourth offence of failing to prevent bribery committed by the manager. In order for a fund to avail itself of the 'adequate procedures' defence, it should ensure that the manager has adequate anti-bribery policies in place.

Equally, funds and their managers should be cautious when entering into contractual arrangements with 'associated persons' performing services for the manager or the fund, for example placement agents and ensure that such persons have policies and procedures in place which are of the same standard as the manager's own.

The implications for a fund manager found guilty under the Act are particularly serious. The manager could have its authorisation removed by the FSA and the relevant individuals could be imprisoned and/or prevented from working in the UK financial services industry.

The investment funds sector, in particular private equity funds and managers should also consider the potential implications of the Act in relation to portfolio companies. A portfolio company is subject to the Act if it is based in or is carrying on business in the UK. However, even where a portfolio company has no place of business in the UK, there is a risk that services performed for the portfolio company by a UK manager might lead to the portfolio company being categorised as carrying out business in the UK and therefore expose it to prosecution under the Act in its own right. For bribery at the portfolio company level to put a fund or manager at risk of failing to prevent bribery under the Act, the portfolio company would need to be performing services for the fund/manager (in order for it to be deemed an 'associated person') and this will need to be analysed on a case by case basis. In any event, a bribery investigation into a portfolio company is likely to have a negative impact on the value of a fund's interest in such portfolio company (as a result of possible criminal fines and/or costly civil litigation). In addition, bribery at the portfolio company level may be damaging to a fund manager's reputation. Funds and managers alike therefore have an interest in satisfying themselves regarding the adequacy of a portfolio company's anti-bribery compliance programme.

Conclusion

Fund managers should ensure that they have a good understanding of the requirements of the new Act which is broader in scope than existing bribery laws. Adequate compliance procedures should be established at the fund, the manager and (if necessary) the portfolio company level, so as to be able to mitigate the risk of breaching the Act.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.