1. UK Bribery Act 2010 Nick van Benschoten UK Government
(OECD Guidelines for Multinationals &
OECD Working Group on Bribery)

2. Overview Bribery Act Section 6 - Bribery of foreign public officials
Section 7 - Failure to prevent bribery
Section 9 - Adequate procedures
Other guidance
Diplomatic assistance
International co-operation
References

3. Bribery Act 2010
Consolidates and modernises Prevention of Corruption Acts, replacing agent/principal model and reliance on the term ‘corruptly’
New offence of bribery of foreign public official
New corporate offence of failure to prevent bribery
New board-level liability for connivance or consent to active corporate corruption
New senior executive liability for connivance in active corporate bribery (not failing to prevent)
Prosecution have to prove not permitted or required by local law
Offset, community investment, visa fast-track fees - see 2010 OECD report on Bribery Act

4. Section 1 – Active bribery
Offer of advantage with intention to induce ‘improper performance’ – defined as breach of an expectation of good faith, impartiality, or acting in position of trust
Jurisdiction over any act by UK nationals, UK legal persons and ordinary residents in the UK
Expectation that of a reasonable UK person, unless different overseas custom & practice mandated in local law
Covers public and private sector corruption
Test of general adequacy despite proven case of bribery on company’s behalf
See 2009 OECD Anti-Bribery Recommendation
-distinguishes gvt agreement to encourage ‘adequate’ anti- bribery systems from voluntary guidance on ‘effective’ systems.
No record-keeping requirements but unhelpful to defence if less documentary evidence compared to other internal controls (e.g. IPR, embezzlement)

5. Section 6 – Bribery of foreign public officials
Based on Article 1 of the OECD Anti-Bribery Convention
Addresses similar misconduct as Section 1 but based on ‘improper advantage’ model
Offer of advantage to official or their nominee, with intention to influence official to provide a business advantage in return
Burden on prosecution to prove ‘improper advantage’ (i.e. official neither permitted nor required to be so influenced by local law)
Test of general adequacy despite proven case of bribery on company’s behalf
See 2009 OECD Anti-Bribery Recommendation
-distinguishes gvt agreement to encourage ‘adequate’ anti- bribery systems from voluntary guidance on ‘effective’ systems.
No record-keeping requirements but unhelpful to defence if less documentary evidence compared to other internal controls (e.g. IPR, embezzlement)

6. Section 7 – Failure to prevent bribery
Liability for bribery by associated persons intended to win business advantage for company
No requirement for prosecution or conviction, but prosecution must prove that such bribery occurred
Associated person defined in terms of those providing services to or on behalf of the company
Presumably employees but may also be agents or subsidiaries; based on all the relevant facts, not just formal relationship
Complete defence if company can show that they had adequate procedures
Test of general adequacy despite proven case of bribery on company’s behalf
See 2009 OECD Anti-Bribery Recommendation
-distinguishes gvt agreement to encourage ‘adequate’ anti- bribery systems from voluntary guidance on ‘effective’ systems.
No record-keeping requirements but unhelpful to defence if less documentary evidence compared to other internal controls (e.g. IPR, embezzlement)

7. Section 9 - Adequate procedures
Defence to new corporate offence only
Generally adequate despite proven failure
Company only needs to show on balance of probabilities
Not regulatory, no mandatory reporting or inspection
While UK companies still need to avoid fraud and keep reasonable accurate accounts, there is no offence of ‘inadequate procedures’
Test of general adequacy despite proven case of bribery on company’s behalf
See 2009 OECD Anti-Bribery Recommendation
-distinguishes gvt agreement to encourage ‘adequate’ anti- bribery systems from voluntary guidance on ‘effective’ systems.
No record-keeping requirements but unhelpful to defence if less documentary evidence compared to other internal controls (e.g. IPR, embezzlement)

8. Other guidance
UKTI’s Overseas Security Information for Business (OSIB) – country overview
Business Anti-Corruption Portal - tools and country reports
2009 OECD good practice guide on anti-bribery systems
RESIST training tool
OSIB
UK-business-only website providing country-specific security advice
bribery and corruption advice prepared by overseas Commercial Officers
Corruption a major part of OSIB seminar on India last year, plans for China
Portal
Country Profiles with information about corruption in over 60 countries
Basic integrity tools aimed at SMEs
e.g. risk assessment procedure, agent screening & consultant evaluation
OECD Good Practice Guide
endorsed by all 38 signatories to OECD Bribery Convention
2 page summary of internal controls & ethical programmes
e.g. export programme to partners where in effective control,
otherwise communicate stance and seek reciprocal commitment
RESIST
Guidance on resisting bribe solicitation and extortion
Real-world scenarios of tenders, sales, logistics & operations
Practical advice on anticipating, controlling & mitigating risks

9. Diplomatic Assistance
Annual instructions to UK Overseas Posts from the Foreign Secretary
Face-to-face preparatory briefing for outgoing Commercial Officers
Officials cannot provide legal advice, but can assist companies seeking to adhere to the law
Take up justified complaints of discriminatory treatment, bribe solicitation or extortion with local authorities
Help companies identify international best practice in preventing bribery
Sensible advice on how companies might avoid pitfalls of local culture and business etiquette
Help address concerns through local knowledge and contacts

10. International Co-operation
Support good governance overseas
Ongoing monitoring and development of international instruments
G20 Seoul commitments
Good governance
Public finance management;
Audit and parliamentary oversight;
Specific anti-corruption institutions, etc.
International instruments
Newly agreed UNCAC monitoring for 140+ countries;
Third round of monitoring for 38-strong OECD Working Group on Bribery;
African Union Convention, etc.
G20
Anti-Corruption Action Plan adopted by all leaders in Dec 2010
e.g. non-G20 countries to criminalise bribery & work with OECD
e.g. visa denial against corrupt officials

11. References Nick.vanbenschoten@bis.gsi.gov.uk 020 7215 6206
OECD report on Bribery Act