The UK Bribery Act 2010, the US Foreign Corrupt Practices Act, and Beyond

86 Pages·2011·0.39 MB·English

The UK Bribery Act 2010, the
US Foreign Corrupt Practices Act,
and Beyond
3 February 2011
Brett Hillis Glenn Colton Artur Davis Dan Brown
Partner (London) Partner (New York) Partner (Washington, D.C.) Partner (London)
T [phone] T 212 398 5797 T 202 408 6471 T 415 882 2477
[email protected] [email protected] [email protected] [email protected]
snrdenton.com
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Agenda
(cid:131) Background
(cid:131) Legislation overview
– UK Bribery Act
– US Foreign Corrupt Practices Act
(cid:131) Critical differences between the laws and the enforcement postures
(cid:131) Other Jurisdictions
(cid:131) Practical recommendations for adequate procedures
(cid:131) Organizational preparations
(cid:131) Case studies
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UK Bribery Act 2010 Background
(cid:131) OECD Convention on Combating Bribery of Foreign Public Officials
in International Business 1998
(cid:131) Corruption allegations against BAE Systems surface 2003
(cid:131) Law Commission report on Reforming Bribery 2008
(cid:131) Draft Bribery Bill March 2009
(cid:131) Bribery Act 2010 Royal Assent April 2010
– expected in force…?
– no transitional provisions/grace periods
(cid:131) Government review?
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UK Bribery Act 2010 replaces
(cid:131) Common law
(cid:131) Public Bodies Corrupt Practices Act 1889
(cid:131) Prevention of Corruption Act 1906
(cid:131) Prevention of Corruption Act 1916
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The Law
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Bribing (UK)
Person may commit following offences:
(cid:131) Section 1: Bribing another person
– Offers, promises or gives a financial or other advantage to
another (directly or indirectly); and
– Intends the advantage to induce/reward a person for the
improper performance of a relevant function or activity; or
– Knows or believes the acceptance of the advantage is itself
improper performance.
(cid:131) EXAMPLE: P provides a friend (who works in the same company
as X) £10,000 to give to X, to persuade X to send P confidential
information about the company that P wants in connection with her
own business.
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Being Bribed (UK)
Person may commit following offences:
(cid:131) Section 2: Being bribed
– Requests, agrees to receive or accepts a financial or other
advantage (directly or indirectly); and
(a) intends there to be improper performance as a consequence;
or
(b) there is improper performance of relevant function or activity
(whether as reward, in anticipation or consequence of
request, agreement or acceptance)
– In the cases outlined in (b), no requirement for person to know
or believe that performance of the function or activity is
improper
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Being Bribed (UK)
(cid:131) EXAMPLES:
(a) R asks P for £10,000 if R or R’s colleague tampers with
supporting documents submitted by rival bidders for a contract
P is seeking with R’s employer.
(b) R, a civil servant, asks for £1,000 for himself to process a
routine application.
(c) R, a civil servant, asks for £1,000 from P as a reward, having
processed P’s application especially quickly.
(d) R, an agent, accepts P’s bid for a contract on behalf of a
company, because R expects P secretly to reward him
personally.
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Bribing Foreign Officials (UK)
Person may also commit following offence:
(cid:131) Section 6: Bribing foreign public officials
– Offers, promises or gives any financial or other advantage to a
foreign public official (directly or indirectly); and
– Intends to (1) influence foreign public official; and (2) obtain or
retain business or advantage in conduct of business; and
– The foreign public official is neither permitted nor required by
applicable written law to be influenced by offer promise or gift.
– No requirement for conduct to be deemed improper
– “Foreign public official” widely defined
– Foreign public official does not commit offence by being bribed
(with limited exception)
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Bribing Foreign Officials (UK)
(cid:131) EXAMPLE: (offence) P asks R, a civil servant in Toyland, to
process quickly P’s application for licence to engage in construction
work in Toyland. R says that will only be possible if P provides X, a
relative of R, with help in the conversion of flats on X’s land. P
agrees to provide the help.
(cid:131) EXAMPLE: (no offence) P asks R, a civil servant in Toyland, to
process quickly P’s application for a licence to engage in
construction work in Toyland. R says that will only be possible if P
helps to build a new school in Toyland. P agrees to provide the
help. The written law applicable to R says that favourable
treatment may be given to foreign businesses if they agree to fund
school building work in Toyland.
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