Highlights of the UK Bribery Act Guidance: What It May Mean For Your Company
On March 30, 2011, the UK Ministry of Justice issued its highly anticipated guidance (Guidance) for the UK Bribery Act (the Act), a criminal anti-corruption statute that will become effective July 1, 2011.1 The Act covers both commercial and official bribery, within and sometimes outside the UK, and a company may be criminally liable for failing to prevent bribes from being offered or paid by its employees, agents or subsidiaries.
Following a brief overview of the new Guidance, in this Update we review:
- The jurisdictional reach of the Act
- The impact of extended liability for business organizations
- Six fundamental principles that can form a full defense for companies
- Facilitation payments, which are considered illegal bribes under the Act
- The treatment of hospitality and promotional expenses
The newly-released Guidance offers some assistance to commercial companies doing business in the UK seeking to implement "adequate procedures" – both to prevent violations and serve as an affirmative defense against liability under the Act. For United States companies doing business in the UK, both the Act and the Foreign Corrupt Practices Act (FCPA) form essential components of a comprehensive global anti-corruption compliance program.
The Guidance sets out six fundamental principles (see below), but one overarching theme is clear: Companies would be wise to fully evaluate and understand their entire business operations – how and where they do business -- assess the differing risks they face and tailor common sense programs to address those specific risks. In pursuing a risk-based approach, companies may be afforded reasonable flexibility (depending on the size, structure, and complexity and the sophistication of their operations) to implement appropriate, and varying, programs.
Jurisdictional Reach Over US and Other Companies
The Act's jurisdictional reach extends to business organizations that are incorporated or formed in the UK, and also to those that conduct business in the UK (wherever they are incorporated or formed). Whether a business is deemed to "carry on" business, or even part of its business, for the purposes of the Act – and be rendered a "relevant commercial organisation" -- will be a fact-sensitive determination, which the Guidance submits will be based on a common-sense approach. Ultimately, the courts will make the final determination based on the particular facts and circumstances of each case. The Guidance provides two examples which in and of themselves will not confer jurisdiction on the company: (1) where the company's securities are listed and may be traded on the London Stock Exchange; and (2) where it merely has a UK subsidiary (which "may act independently of its parent or other group companies").
Extended Liability for Business Organizations
A "relevant commercial organization" risks prosecution if the government determines there is sufficient evidence to establish that an "associated person" bribed someone else with the intent to obtain or retain business or an advantage for that business entity. The associated person -- someone who merely needs to "perform services" for or on behalf of the company -- is not required to be prosecuted as a predicate for the company's prosecution. Nor is the associated person required to have a close connection with the UK. Moreover, the determination of who performs such services is to be based on a broad interpretation. Employees are presumed to perform services, agents and subsidiaries qualify, and contractors and suppliers may also qualify depending on the circumstances. Titles and position are not determinative; far more important are the underlying conduct and the practical realities.
In addition to liability for failing to prevent bribery from occurring, the business organization may also be prosecuted if the government can prove that the bribe giving or receiving (or offering, encouraging or assisting) took place by someone "representing the corporate 'directing mind.'" JPG.
An Adequate Compliance Program Is A Full Defense: Six Fundamental Principles
The Act creates a full defense for companies that can demonstrate they have implemented "adequate procedures" to prevent associated persons from engaging in bribery (even if a case of bribery has been proved). The affirmative defense is required to be proved by "the balance of probabilities." In deciding whether to proceed with its case, the government will also consider the adequacy of compliance procedures, which can turn on the case-by-case facts and circumstances, including the level of control exercised over the conduct of the relevant associated persons and the degree of risk for which mitigation is required.
Six core principles have been set out in the Guidance and accompanying commentary to help advise companies in devising and implementing adequate procedures to prevent bribery:
- Proportionality of response to the bribery risks that the organization faces and to the nature, scale and complexity of the organization's activities
- Commitment of top-level management to prevent bribery by associated persons (e.g., effectively communicating no tolerance policy from top to bottom)
- Risk Assessment (to promote periodic, informed and documented assessment proportionate to the company's size and structure and to the nature, scale and location of its operations)
- Due Diligence: Demanding that companies investigate and are aware of who is acting on their behalf in order to mitigate bribery risks
- Communication (and training): Ensure that policies and programs are "embedded and understood" throughout the company through internal and external communication.
- Monitoring and Review: Undertake systematic review to assess changed circumstances and new risks and implement improved procedures where deemed appropriate
Facilitation Payments Constitute Illegal Bribes Under the Act
Unlike the FCPA, the Act prohibits facilitation payments – small grease payments to low-level government officials to perform or expedite routine, non-discretionary services (e.g., processing immigrations or customs forms, turning on the electricity, etc.)... Nonetheless, the Guidance makes clear that the UK government appreciates that given the realities in certain global regions and in certain sectors, overnight elimination is not feasible. Moreover, "eradication" of facilitation payments is recognized as a "long-term objective." However, the JPG identifies factors tending in favor of and against prosecution:
Factors in favor of prosecution: (i) large or repeated payments; (ii) planned or accepted payments that may reflect standard operating procedure; (iii) payments reflective of an official's corruption; and (iv) the failure to follow the organization's facilitation payment policies and procedures
Factors against prosecution: (i) a single small payment; (ii) payment identified as part of genuinely proactive approach involving self-reporting and remedial action; (iii) adherence to the organization's clear and appropriate procedures for facilitation payment requests; and (iv) the particular circumstances placed the payer in a vulnerable position
Hospitality and Promotional Expenses Are Not Prohibited by the Act
Like the promotional expense exception under the FCPA, the Act does not criminalize bona fide hospitality and promotional expenses, as long as there is no improper intent. Specifically, the guidance makes clear that providing tickets to sporting events or taking clients to dinner to promote and continue good relations, or paying for reasonable travel expenses in order to demonstrate your company's goods or services, if reasonable and proportionate, will not run afoul of the Act. However, where hospitality expenses are made to mask an intent to bribe or improperly induce advantageous business conduct, the authorities can be expected to view the expense payment as an illegal bribe under the Act. The extent of the hospitality and promotional expenses offered, the way in which they were provided and the level of influence the client exercised or could exercise in the business decision will all be examined.
The next three months, until July 1, when the Act goes into effect, will provide a special opportunity for U.S. and other companies doing business in the UK to re-evaluate their operations and take a fresh look at the effectiveness, or "adequacy," of their anti-corruption policies and procedures. Conducting a measured, proportionate and risk-based assessment makes eminent good sense in light of the UK Bribery Act, the FCPA and an evolving global propensity for strict anti-corruption enforcement.
The Ministry of Justice Guidance can be found here.
1Also issued that same day is the Joint Prosecution Guidance of the Director of the Serious Fraud Office and the Director of Public Prosecutions (JPG), which provides some insight into the Directors' views as to "prosecutorial decision-making" regarding violations of the Act.