The Bribery Act 2010-Are you Ready?
The Bribery Act 2010 comes into force in the UK on 1 July 2011. It replaces the UK's existing common law and old statutory offences relating to bribery and establishes four new bribery offences.
Does it apply to Hong Kong and PRC businesses?
Yes. The new law is extra-territorial and will apply to Hong Kong and PRC companies and partnerships that carry on business or part of their business in the UK, even where the bribery takes place outside the UK. It will also apply to UK companies and UK citizens/nationals in Hong Kong and the PRC. Notably, this includes many people in Hong Kong who have the BNO (British National (Overseas)) status.
What are the four new bribery offences?
Bribing another person: offering, promising or giving a financial or other advantage to another person to induce or reward the improper performance of a relevant function or activity.
Being bribed: requesting, accepting or agreeing to accept a financial or other advantage intending or as a reward for the improper performance of a relevant function or activity.
Bribing foreign public officials: bribing a foreign public official directly or through a third party, intending to influence the official in his capacity as such and to obtain or retain business or a business advantage.
Failure of a commercial organisation to prevent bribery: it covers non UK organisation doing business or part of its business in the UK. An offence is committed if a person associated with such an organisation bribes another person, intending to obtain or retain business for that organisation or obtain or retain an advantage in the conduct of business for it.
A person is associated with a commercial organisation if he performs services for or on behalf of the organisation, for example an employee, agent, consultant or subsidiary of the organisation. The associated person does not require to have a close connection with the UK and the bribery does not have to take place in the UK. It is a defence if that organisation can show that it had adequate procedures in place to prevent bribery conducted by its associated person.
For individuals : up to 10 years and/or an unlimited fine.
For commercial organisations : an unlimited fine.
A company's Senior Officer (director, manager, secretary or other similar officer) can incur personal liability (punishable by up to 10 years imprisonment and/or an unlimited fine) if the bribery was committed with their consent or connivance and he has a close connection with the UK.
Is hospitality caught by the Act?
Possibly as bribe can be disguised as hospitality. It depends on things such as:
- the level of hospitality provided,
- how it was provided, and
- the level of influence the person receiving it had on the business decision in question.
Reasonable and proportionate bona fide hospitality and promotional or other business expenditure which seeks to improve a commercial organisation's image or better present its products or services or establish cordial relationships will not be be caught by the Act.
What about facilitation payments?
Payments made to induce officials to perform routine functions which they are otherwise obliged to perform are bribes. Legally required administrative fees or fast-track services would not be considered as facilitation payments.
What should Hong Kong or PRC businesses do?
Due to the extra territorial application and the seriousness of the offence, Hong Kong and PRC businesses should :
- understand the application and implication of the Bribery Act;
- review their business to determine whether the Act applies
(or could apply) to any part of their business and the persons performing services for them or on their behalf;
- For companies that might be exposed to the Act, they should review its internal procedures to ensure that there are adequate anti-bribery procedures in place.
The following six guiding principles should be taken into account in formulating the internal procedures :
Proportionate procedures: Bribery prevention procedures should be proportionate to bribery risks that the organisation faces.
Top-level commitment to bribery prevention: Senior management should take personal action/interest in letting employees, agents, business partners know that the company has zero tolerance to bribery. They should also be involved in developing bribery prevention procedures.
Risk assessment: Adoption of risk assessment procedures to accurately identify and prioritise risks.
Due Diligence: Due diligence procedures in respect of persons who perform or will perform services for/on behalf of the company.
Communication (including training): To ensure bribery prevention procedures are embedded and understood.
Monitoring and review: Regular monitoring and review of bribery prevention procedures.
If you need any assistance or have any question in relation to the Bribery Act 2010, please contact our Head of Litigation and Dispute Resolution, Joseph Kwan.
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Whilst every effort has been made to ensure the accuracy of this publication, it is for general guidance only and should not be treated as a substitute for specific advice.