Greenberg Traurig Alert: Bribery Act 2010: Anti-Corruption Policies

Greenberg Traurig Alert: Bribery Act 2010: Anti-Corruption Policies

The Bribery Act 2010 (the "Act") is due to come into force in April 2011. The Act will see the introduction of the new "corporate offence" of having failed to prevent bribery from occurring. The only defence to this strict liability offence will be to demonstrate that the company in question has in place an effective and

fully implemented anti-corruption policy and procedures. In order to assist companies prepare for that moment, the U.K. Government has published draft guidance on how companies can ensure that their policies and procedures would be deemed adequate (the "Draft Guidance"). The consultation period on the Draft Guidance is due to close on 8 November 2010. It is expected that the final form of the guidance will be published in January 2011. This Alert seeks to provide an overview of the Draft Guidance, and outlines what steps companies should be taking between now and April 2011.

The "Corporate Offence" and the "Adequate Procedures Defence"

The Act provides that commercial organisations may be criminally liable for failing to prevent bribery (whether offered or received) by persons providing services to the business, including employees, agents and subsidiaries (whether domestic or foreign), as well as joint venture partners. A commercial organization can be caught by this provision if it is a U.K. company or partnership, or if it is incorporated elsewhere but carries on business in the U.K., although it does not have to be the U.K.-connected part of the business that commits the offence for the Act to bite. In practice, therefore, any multinational group which has some connection with the U.K. is exposed to potential liability under the Corporate Offence.

As noted above, the Corporate Offence is strict liability - so claims that any bribery was merely the result of negligence rather than criminal intent will have no relevance. The only defence is, as set out in the Act, to demonstrate that the commercial organisation had in place "adequate procedures designed to prevent the persons associated with the commercial organization from undertaking such conduct".

Please click on the Attachment: link at the top of the post to view or download the entire article

Attachment: Bribery Act 2010--Anti-Corruption Policies.pdf