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The New UK Bribery Act

Introduction

Significant new UK anti-bribery legislation, the Bribery Act, received Royal Assent in April 2010, and is likely to come into force later this year. The Act reforms UK criminal anti-bribery law and covers bribery both within and outside the UK. As well as containing general offences concerning paying and receiving bribes, the Act makes it a specific offence to bribe foreign public officials. However, perhaps the most notable aspect of the new Act is that the failure of commercial organisations to prevent bribery is also an offence. This strict liability offence extends to non-UK organisations which carry on business in the UK.

Background to the new legislation

Previous UK anti-corruption law was based on common law and on statutes dating from the late nineteenth and early twentieth centuries. It was generally viewed as in need of reform.

There was widespread disquiet about the weaknesses in the UK's anti-bribery regime following the UK government’s controversial decision in 2006 to stop, in the interests of national security, the Serious Fraud Office's investigation into alleged bribery in connection with BAE’s Al-Yamamah arms deal with Saudi Arabia.

The Organisation for Economic Cooperation and Development (OECD) adopted its anti-bribery convention in 1997. In 2008, the OECD Working Group on Bribery stated that it believed that the UK’s laws on foreign bribery were insufficient and created an obstacle to successful prosecutions. It recommended that the UK enact anti-foreign bribery legislation as soon as possible.

With this background, in 2008 the Law Commission published proposals on reforming anti-bribery law, upon which the new Act is based.
 

 

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and early twentieth centuries. it was generally viewed as in need of reform. 75008 paris fax: +86.21.6122.5588 such procedures have been implemented. washington, dc will be guilty of an offence if he intends such improper performance to follow as a consequence of his taunusanlage 18 fried, frank, harris, shriver & jacobson llp fax: +44.20.7972.9602 organisations (rather than by individuals), in circumstances where a person "associated" with the organisation extra-territorial application the most controversial aspect of the act is an offence, which can only be committed by commercial contact, or the attorney listed below: intention of inducing, or rewarding, the "improper performance" of a "function or activity", or (ii) knowing that the act contains general offences of bribing another, which consist of either (i) bribing another with the assessing whether this standard has been met (save where the practice or custom is permitted or required by to prevent associated persons from undertaking bribery. the burden of proof is therefore on the company to if you have any questions about the contents of this memorandum, please call your regular fried frank t o o u r f r i e n d s a n d c l i e n t s one new york plaza london liable for actions taken on their behalf by the company's agents, wherever in the world such activities take the scope of this offence follows the oecd recommendations on combating the bribery of foreign public london and outside the uk. as well as containing general offences concerning paying and receiving bribes, the act perhaps the most important point arising from the new act is that the requirement on organisations to have even more restrictive than equivalent us anti-corruption law. it will be up to the uk prosecuting authorities to failure of commercial organisations to prevent bribery (the "corporate offence") "adequate procedures" in place to prevent bribery will apply not just to uk companies, but also to non-uk tel: +86.21.6122.5500 bribing foreign officials, all have extra-territorial application. these offences also apply to bribery taking place fax: +49.69.870.030.555 bribing a foreign public official constitutes adequate procedures, but compliance with this guidance is not intended to be a safe harbour. shanghai 200040 fax: +1.212.859.4000 place. companies with a uk presence will therefore need to have proper systems in place to ensure hong kong neil macleod +44.207.972.6212 neil.macleod@friedfrank.com a defence to this offence is available if the organisation can show that it had "adequate procedures" in place officials. government's controversial decision in 2006 to stop, in the interests of national security, the serious fraud introduction * * * have proper policies, controls and procedures in place, and to have board level involvement to ensure that demonstrate (on the balance of probabilities) that its procedures were adequate in preventing its employees, fax: +852.3760.3611 bribery were insufficient and created an obstacle to successful prosecutions. it recommended that the uk decide whether or not to prosecute persons making facilitation payments. with this background, in 2008 the law commission published proposals on reforming anti-bribery law, upon this corporate offence is in effect a strict liability offence, and so can make companies criminally liable for come into force later this year. the act reforms uk criminal anti-bribery law and covers bribery both within offence extends to non-uk organisations which carry on business in the uk. a person accepting a bribe, or just requesting or agreeing to receive a bribe (whether or not it is actually this means that where the activity takes place outside the uk, local practice or custom is not relevant to fax: +1.202.639.7003 not only its employees, but also its agents and other third parties performing services for or on its behalf paris significant new uk anti-bribery legislation, the bribery act, received royal assent in april 2010, and is likely to hong kong which the new act is based. bribes another person intending to obtain or retain a business advantage. such "associated" persons include corporate body or partnership which "carries on a business, or part of a business," in the uk. there was widespread disquiet about the weaknesses in the uk's anti-bribery regime following the uk local written law). agents, or other third parties acting on its behalf, from committing bribery. bribery carried out by its agents, even if no one within the company knew of the bribery. foreign company had no knowledge of such activities. may 11, 2010 3 previous uk anti-corruption law was based on common law and on statutes dating from the late nineteenth the government intends, before this section of the act comes into force, to publish guidance as to what tel: +1.202.639.7000 the "function or activity" to which the bribe relates includes any function of a public nature and those private but where accepting or asking for a bribe, in itself, amounts to improper performance, or where the bribe is a official (or a third party at his request or with his acquiescence) is bribed intending to influence that official, in author: the acceptance of the bribe would in itself constitute such "improper performance". bribing for these purposes constitutes the offences of bribing another or bribing a foreign public official fried, frank, harris, shriver & jacobson (london) llp fried, frank, harris, shriver & jacobson (europe) fried, frank, harris, shriver & jacobson 15 queen's road central frankfurt the organisation for economic cooperation and development (oecd) adopted its anti-bribery convention in tel: +33.140.62.22.00 makes it a specific offence to bribe foreign public officials. however, perhaps the most notable aspect of the fax: +33.140.62.22.29 2 new act is that the failure of commercial organisations to prevent bribery is also an offence. this strict liability there is a separate offence of bribing a foreign public official, which is committed where a foreign public includes british nationals and uk corporates. background to the new legislation m e m o r a n d u m (which may, for example, include joint-venture partners). compliance with the act. this clearly has significant implications for non-uk companies which carry on business in the uk. under the london ec1y 1ax the "function or activity" will be performed "improperly" if the person performing it does not meet an order to obtain or retain business, and where the official is neither permitted nor required by the written law of "expectation" that it will be performed in good faith or impartially, or in a manner arising from that person's tel: +852.3760.3600 (whether or not the person has actually been prosecuted for committing such offences). position of trust. the test for this "expectation" is the standard expected by a reasonable person in the uk. conclusion 4 99 city road tel: +44.20.7972.9600 40th floor, park place 1601 nanjing road west 1001 pennsylvania avenue, nw receiving bribes copyright © 2010 fried, frank, harris, shriver & jacobson (london) llp washington, dc 20004 reward for such improper performance. received) will commit an offence, where there is "improper performance" of a "function or activity". a person the new uk bribery act tel: +49.69.870.030.00 acceptance or request. however, he may also commit an offence where he does not have any such intention, the corporate offence applies not only to companies and partnerships incorporated in the uk, but to any shanghai outside the uk, if committed by persons having "a close connection with the united kingdom", which term 60325 frankfurt am main 1997. in 2008, the oecd working group on bribery stated that it believed that the uk's laws on foreign 9th floor, gloucester tower bribing another territorial application of the corporate offence that country to be so influenced. enact anti-foreign bribery legislation as soon as possible. new york, ny 10004 tel: +1.212.859.8000 65-67, avenue des champs elysées companies which carry on business in the uk. furthermore, such overseas companies may be criminally new york although this guidance has not yet been published, it is expected to include requirements on the company to act, such non-uk companies could be prosecuted by uk authorities for the actions of their agents, even if the office's investigation into alleged bribery in connection with bae's al-yamamah arms deal with saudi arabia. this offence could catch small facilitation payments made to foreign public officials, even in those countries functions connected with a business. the general offences in the act concerning bribing another and receiving bribes, and the discrete offence of where such payments are normal practice. this means that, in this respect, the new uk anti-bribery law is friedfrank.com the landmark


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