The Knowledge > Step-by-step guide How to...
AVOID FALLING FOUL OF THE BRIBERY ACT Follow our step-by-step guide to making sure your company abides by the new Bribery Act when doing business overseas. Andrew Frake of ASB Law explains how
Andrew Frake ASSISTANT SOLICITOR ASB LAW LLP Andrew started his career as a criminal defence solicitor before moving to asb law LLP in 2007. He now works within their commercial litigation team as a specialist in fraud and civil recovery from both the claimant and defen- dant perspective. He also undertakes general commercial litigation and represents the Secretary of State for Business Innovation and Skills in proceedings under the Company Directors Disqualifications Act 1986.
ON 30 March 2011, the Ministry of Justice published their formal guidance on the Bribery Act 2010. We now know that the Act will come into force on 1 July this year. Consequently, now is the time to familiarise yourself with how this controversial Act will impact on the way that you do business overseas. The Bribery Act is attracting much publicity and criticism of its radical tightening of laws relating to bribery and corruption. The corporate hospitality sector, for one, is understandably concerned. “One of the chief concerns is how this Act will impact upon the ability of UK corporates to compete on the world stage,” explains Andrew Frake, assistant solicitor at asb law LLP. “Many companies still bestow lavish
gifts on their clients and prospective clients in the hope of winning additional business,” says Frake. Indeed, in many business cultures around the globe, such gifts are considered an essential element of any campaign to win work and are commonly built into a company’s budget for promotional expenditure. However, the Bribery Act will mean
that any gifts, donations, hospitality or invitations to sporting events may be considered as bribes if they are given with the intention of influencing business decisions of third party organisations. “It is not sufficient for a commercial organisation to rely on the fact that the bribe was given by a rogue employee without their knowledge,” says Frake. “Section 7 of the Act
states that a commercial organisation will be guilty of
“Ensure that staff undergo proper training as to what may constitute a bribe under the new Act”
an offence if a person associated with that organisation bribes another person with a view to gaining an advantage for that organisation. The onus is therefore on the company to prevent their staff giving or receiving such bribes.“ Below is a step-by-step guide
to what your company can do to avoid falling foul of the Act.
Step 1 Ensure that your company
has a clear, strict and enforceable policy on what its employees, officers and agents are permitted to do in terms of
giving and receiving gifts from people and organisations both in the UK and overseas. Specify the level of gifts that may be given without board approval and which members of staff are permitted to bestow gifts and donations. Keep the limits as restricted a possible. Make sure that this policy is made available to all of your staff and agents.
Step 2 To complement your policy, ensure that all of your current staff and new employees undergo proper training as to what may constitute a bribe under the new Act and what warning signs they should look out for. This training should include various scenarios which may or may not give rise to an offence under the Act and with multiple-choice answers to allow them to determine for themselves whether they may be compromising themselves or their employer by way of their conduct. Each member of staff who may be in a position to offer or receive a bribe should be required to pass an assessment.
Step 3 Keep a central record of all
gifts and donations that are given by your company and ensure that this record is reviewed on a regular basis. It is important to remember that it is a defence under section 7(2) of the Act if a company can demonstrate that they had in place adequate procedures designed to prevent bribery.
Step 4 Include as many external facing documents as possible that give a clear message that bribery is not tolerated within your organisation – for example, your standard terms and conditions and tender documents.
Step 5 Ensure that your staff bestow
no gifts or any financial advantage on any foreign official without your knowledge. Bribery of a foreign official is a specific offence under section 6 of the Act and therefore you and your staff must be particularly vigilant in this area. This includes facilitation payments designed to expedite simple bureaucratic processes (still permitted under US law).
Step 6 The timing of a gift can be critical. Vigilance is always required but this will be even more important when dealing with a client or prospective client that is in the process of inviting tenders for work. Even a gift or donation given after the award of work to your business may be considered a bribe under the Act.
Step 7 If your company is truly
global you may need to adapt your policy to different areas or specific countries. A modest gift in a Western European country may be sufficient to amount to a bribe under the Act in a third world country in Africa. Without over-complicating your policy, make sure that this is clearly reflected.
10 I THE BUSINESS TRAVEL MAGAZINE
BIGSTOCKPHOTO.COM
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104