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Clifford Chance

Clifford Chance


The new UK Bribery Act: why GCC companies need to be prepared

1 March 2011

The UK government's new Bribery Act of 2010 is expected to come into force in April 2011 (the "Bribery Act"). The new law is extra-territorial in that it extends to some foreign companies and conduct outside the UK. GCC companies that carry on business, or part of a business in the UK, will need to prepare for this new law. There will also be implications for GCC companies performing services, for example, on an outsourcing basis, for UK companies.

Why should GCC companies be concerned?

  • The Bribery Act creates a new corporate criminal offence – failing to prevent bribery by an associated person - which applies to non-UK companies and partnerships that carry on business (or part of a business) in the UK.
  • There is only one defence to the new corporate offence: the commercial enterprise must prove that it had "adequate procedures" in place designed to prevent persons associated with it from undertaking acts of bribery.
  • The Bribery Act also criminalises private sector bribery and creates a new offence of bribing a foreign public official to which there is no "facilitation payments" exception.
  • The Bribery Act goes beyond the US's Foreign Corrupt Practices Act ("FCPA") in a number of ways, so even companies with robust FCPA compliance programmes need to check that those programmes would be viewed as adequate for the purposes of the Bribery Act.
  • The penalties for corporations are high: criminal conviction, unlimited fines and - possibly - permanent exclusion from government contracts across the European Union (the "EU").
  • UK prosecuting authorities have recently taken a much greater interest in prosecuting overseas corruption, and UK courts have said that UK fines for such corruption should be comparable with the heavy fines imposed by US authorities.

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