Each of the offences has the potential for extra-territorial application, although the Guidance purports to narrow the Act's reach over non-UK corporations.
In respect of offences (1)-(3), the courts will have jurisdiction where any act or omission which forms part of the offence is committed in the UK, or where the offences are committed by a person (including a corporate entity) "closely connected" to the UK. Under the Act, a person has a close connection if, and only if, they are (a) a British citizen, subject or similar, (b) an individual ordinarily resident in the UK, or (c) a body incorporated under the law of any part of the UK or a Scottish partnership. Where the offence is committed by a corporate entity, the Act will apply such that any senior officer of that corporate entity, or person purporting to act in such capacity, may be guilty of an offence if they have consented or connived in the commitment of the offence.
The Act has even wider extra-territorial reach in relation to the corporate offence, as it has potential application to every commercial organisation that "carries on a business, or part of a business" in the UK. The Act therefore covers non-UK corporate entities with a business presence in the UK, regardless of whether the bribe is paid in relation to that business. The Guidance indicates that the test of business presence is to be applied on a common sense basis. It was not the UK Government's intention that either a listing on the London Stock Exchange or the existence of a UK subsidiary should in themselves be enough to satisfy the test of carrying on a business in the UK. This potentially reduces the reach of the Act over non-UK corporations dramatically. However, as the courts will ultimately have responsibility for interpreting this test, corporations with such connections to the UK would be prudent not to rely on it yet. In particular, if a UK subsidiary does not act independently of its parents or other group companies, the courts may consider that the test is readily met.
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