United Kingdom’s Bribery Act 2010 to Become Law

Gus J. Bourgeois, III

June 14, 2011

After years of discussion, debate and delay, the United Kingdom’s Bribery Act 2010, which has been described as the toughest anti-corruption legislation in the world, will finally become law effective July 1, 2011. Although the Act covers the crime of bribery broadly, the most important provisions of the Act from the point of view of international businesses are those dealing with bribery of a foreign public official (Section 6 of the Act) and failure of a commercial organization to prevent bribery on their behalf (Section 7 of the Act).

A person who promises, offers or gives an improper financial or other advantage to a foreign public official, either directly or through a third party, can be found guilty of bribery of a foreign public official. A foreign public official is defined as “an individual holding legislative, administrative or judicial posts or anyone carrying out a public function for a foreign country or the country’s public agencies or an official or agent of a public international organization”. There is no requirement to show that the bribe resulted in the public official acting improperly. This Section applies to a person who (1) committed the act in the UK, or (2) acted outside of the UK if such act would have constituted a crime if committed in the UK, if the person had a “close connection” to the UK, which includes being a British citizen or resident, or a company incorporated in the UK. Unlike the U.S. Foreign Corrupt Practices Act, there is no exception for “facilitation payments” — making the Bribery Act 2010 much more comprehensive in its scope than the FCPA.

The crime of failure of commercial organizations to prevent bribery on their behalf applies not only to the organization itself, but to its employees and agents on an individual basis, and the employer can be held vicariously liable for the acts of its employees, agents and subsidiaries.  This is a strict liability offense, so there is no need to prove intent in order to reach a finding of guilt. This Section applies to any commercial organization which has business in the UK, without regard to location; therefore, according to the Archbold Review, “…a German business with retail outlets in the UK which pays a bribe in Spain could, in theory at least, face prosecution in the UK”.  However, the commercial organization has a defense if it can show that it had implemented adequate procedures to prevent persons associated with it from engaging in such conduct.

These provisions may have a significant impact on the compliance efforts of international businesses which employ British citizens or residents, or which conduct business in the UK (whether directly or through subsidiaries or affiliates). It is expected that such businesses will attempt to impose their internal compliance regimes on suppliers by contract, which may lead to higher costs to the supplier and a “shaking out” of smaller suppliers who do not have the financial and compliance resources to satisfy such contractual requirements.