The Act aims to improve the UK’s record on prosecuting bribery. The Act makes it an offence to:
- bribe another person;
- be bribed;
- bribe a foreign national; and
- for a commercial organisation to fail to prevent bribery.
This last offence has prompted much concern. A commercial organisation is guilty of an offence if a person “associated” with it (such as an agent) bribes another person. The offences can be committed in the UK or overseas. An organisation will automatically be guilty of a criminal offence where a bribe is paid on its behalf. There is a defence if it can show that it had in place adequate procedures designed to prevent bribery.
The penalties are imprisonment and/or an unlimited fine. Companies which have been convicted under the Act could be debarred from tendering for public sector contracts and may be blacklisted in other countries such as the USA.
There are some steps you can take to reduce risk:
- Do a risk assessment: certain countries and industry sectors are more prone to bribery than others.
- Prepare and implement anti-bribery policies and procedures and train relevant staff.
- When dealing with third parties carry out due diligence on their background. Check if your agent has satisfactory anti-bribery policies in place.
- Review standard form agreements for anti-corruption provisions.
- When acquiring companies your due diligence needs to be rigorous. If you buy one which is then found to have been involved in bribery its value may be much reduced.
- Existing joint ventures and joint-venture partners should be subject to review for their anti-bribery policies.
- Be aware of any facilitation or “grease” payments being made by or on behalf of the company, as these will also shortly be outlawed.
David Ashplant is a Partner at Lester Aldridge LLP
David’s main areas of work are:
Company and business acquisitions and disposalsJoint venturesIT and technology contractsIntellectual property licensingEU and competition lawDistribution and agency agreements
David works with companies based in the UK as well as internationally, particularly in Europe and the USA.
Recognised by the Good Lawyer Guide 2010 for outstanding legal practice
Email david.ashplant "@" LA-law.com
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Corporate and Commercial
Intellectual Property, Technology, E-commerce and IT