Swiss American Chamber of Commerce The Bribery Act 2010 Zurich: 16 November 2011
Overview Part 1 In force 1 July 2011 (no implementation period) 4 new offences Bribing (section 1) Being bribed (section 2) Bribing foreign public officials (section 6) Failure by a commercial organisation to prevent bribery by an associated person (section 7) ( Corporate Offence ) 1
Overview Part 2 Territorial application: S. 1, 2 and 6 offences: acts committed by any person or corporate within the UK; or acts committed outside the UK by a person or corporate with a close connection to the UK S.7 Corporate Offence has wide extra-territorial application: covers acts committed by an associated person anywhere in the world, provided the commercial organisation carries on any part of its business in UK Penalties (10 years in prison, unlimited fines, confiscation of bribe proceeds) SFO approach (budget for investigations, focus on tax records, self reporting) 2
Section 1 and 2 offences Bribing (section 1) Being bribed (section 2) Offence to offer, promise or give Offence to request, agree to receive or accept a financial or other advantage with the intention of inducing improper performance by the recipient of a relevant function or activity 3
Section 1 and 2 offences Advantage Any payment, gift or benefit could be caught Improper performance Breach of expectation that person will act either (i) in good faith, (ii) impartially or (iii) in accordance with position of trust Objective test: assessed by UK standards unless permitted by written law of overseas country Function or activity (1) Of a public nature; or (2) Connected with business; or (3) In the course of employment; or (4) Performed by or on behalf of a body of unincorporated or incorporated persons 4
Bribing foreign public officials (s.6) Public Official Any appointed or elected legislative, administrative or judicial position; or Official agent of a public international organisation Foreign In or on behalf of a country or territory outside the UK Offence To offer, promise or give advantage to a FPO (or other person with FPO s request or consent) With the intent to influence them in the exercise of their duties Provided written local law does not permit Captures facilitation payments 5
Corporate offence (section 7) Relevant commercial organisation commits offence if person associated with organisation bribes (i.e. commits either s.1 or s.6 offence) another with intention of retaining business or advantage for organisation Relevant commercial organisation : incorporated body or partnership, formed under law of any part of UK and carrying on a business anywhere in world OR carries on any part of business in UK wherever incorporated Associated person : anyone who performs services for that business: (1) employees (2) agents (3) subsidiaries (4) contractors (5) joint venture or consortia partners (6) third party service providers / suppliers vicarious, extraterritorial, and strict liability (intention is irrelevant) unless adequate procedures are in place 6
Adequate procedures defence Full defence to s.7 Corporate Offence MOJ Guidance: published March 2011 Six key principles: Proportionality Top level commitment Risk assessment procedures Due diligence procedures Communication and training Monitoring and review 7
Practical steps/measures Risk assessment, compliance audits Anti-bribery policies/codes of conduct Employment contracts Hospitality/gift registers Due diligence regarding 3 rd parties (and corporate targets) Warranties and indemnities in contracts Internal training Whistleblowing Document decision making process 8
Specialist contacts For advice on the impact of the Bribery Act 2010, please contact: Steven Corney Partner +44 020 7067 3509 steven.corney@olswang.com Oliver Gayner Senior Associate +44 020 7067 3592 oliver.gayner@olswang.com 5761061