Entry into force on 1 July 2011
Finally, the UK Government has confirmed yesterday (30 March 2011) that the UK Bribery Act 2010 (the "Act") will come into force on 1 July 2011.
Key points of the Act
The Act covers bribery in the private as well as in the public sector and (unlike many anti-bribery laws in the CE/CEE-region) does not provide any monetary limits up to which a person can offer gifts without being held criminally liable.
For the purposes of the Act, a bribe is effectively the giving or receiving (or the offer or promise to do so) of a financial or other advantage with the intention of bringing about the "improper performance of a function or activity". The Act consolidates existing offences of offering or receiving a bribe, bribery of foreign public officials and introduces a new corporate offence of failure by a commercial organisation to prevent a bribe being paid or received on its behalf.
The offences of bribery are punishable by a prison sentence of up to 10 years for individuals and unlimited monetary fines for corporations.
A company will be guilty of failing to prevent bribery if a bribe was paid by a person associated with the company. A person is associated with a business if that person performs services for or on its behalf, which is to be determined by reference to all the relevant circumstances and not just by reference to the nature of the relationship. Associated persons could include employees; agents; contractors; suppliers where they are performing services rather than simply acting as a seller; joint ventures where the bribe is paid for a member of the joint venture and with the intention of benefitting that member; and subsidiaries if the bribe was made to benefit the parent company. An indirect benefit is not sufficient to constitute an offence.
However, it will be a defence for an organisation to show that it has "adequate procedures" in place to prevent such bribery.
Guidance to the Act
In addition, the UK government has published on 30 March 2011 a particular guidance (the "Guidance") for commercial organisations about how they can reduce their exposure to bribery offences under the Act. The Guidance is important as it provides clarification in relation to what will constitute "adequate procedures". The key points of the Guidance are formulated around the following six general principles:
- proportionate procedures;
- top-level commitment;
- risk assessment;
- due diligence;
- communication; and
- monitoring and review.
Separate prosecution guidance has also been issued on 30 March 2011, stating that prosecutions will normally be instigated unless there are public interest arguments to the contrary. Large or repeated payments, or payments that were planned for or were accepted as a standard way of conducting business are stated as factors tending in favour of a prosecution. The full text of the guidance can be found here: http://www.justice.gov.uk/guidance/docs/bribery-act-2010guidance.pdf
The Act's motivation
The motivation of the UK government to implement the Act was to force companies implementing "adequate procedures" to prevent bribery, i.e. an anti-corruption compliance program. Its goal is that every organisation that is touched by this Act needs to review its risk profile and decide upon the anti-bribery and corruption programme it requires in order to protect itself. In particular, large scale, multinational organisations operating in high risk areas will be under a more onerous obligation to ensure that their duty to implement adequate procedures is properly discharged.