Parting the Fog of the UK Bribery Act 2010: A Critical Discussion of What We Do Know about the Act and Why It Is in the Company's Interests to Comply with Its Provisions

The Bribery Act 2010 received Royal Assent in April 2010, finally coming into effect on July 1, 2011. As Jack Straw indicated at the 5th European Forum on Anti-Corruption in June 2009, the aim of the Act is to foster a “zero-tolerance culture” towards corruption in business. In furtherance of this aim, compliance advice, the Ministry of Justice's “Guidance for Relevant Commercial Organisations” has been released. While the MOJ was required by the Act to publish this guidance, businesses should not treat the guidance as fully authoritative since the guidance does not change the wording of the Act. Nevertheless, the guidance provided is comprehensive, focusing in particular on how the adequate procedures defence to the s.7 offence (failure of commercial organisations to prevent bribery) may be established. Despite the guidance, however, there remains considerable uncertainty among businesses on the key issues of corporate hospitality and facilitation payments, as well as the potential costs of prosecution under the Act.

This article will address those uncertainties and will be split into two parts. The first part will discuss all of the general offences under the Act, but will focus in particular on s.1 (which covers corporate hospitality) and s.6 (which covers facilitation payments). The second part focuses on the enforcement aspects of the Act, which will help businesses in undertaking their own cost-benefit analysis to rationalise whether or not compliance with the Act is worth their while. The importance of this analysis cannot be overestimated since the Act's intention is to allow for a systemic shift whereby bribery is not seen as a legitimate operational cost of business. In this regard, it appears that the Act will be used in a way to punish recalcitrant offenders much more severely if they continue to brazenly engage in bribery, while at the same time being more lenient towards those who are determined to rid their companies of corrupt practices. It is therefore the aim of this article to demonstrate precisely that the above proposition is true, and that businesses will seek to lose much more if they do not comply with the Act.

 

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