Britain has taken a step towards shaking off its global reputation for being soft on corruption with the release of long-awaited guidelines on bribery and graft.
The Ministry of Justice’s (MoJ) Bribery Act is designed to speak with a single clear voice, drawing disparate strands of law together in one bill that will dictate if a company is breaking the law.
But how distinct is the message? How determined is Britain to clamp down on bribery, whether by UK firms or by foreign corporates with listings in London?
And what should you do if a partner of your company operating in a murky foreign land acts unethically?
First, let’s look at what is right about the legislation. The new act is clear and lucid in many ways and a huge step up from previous measures, which were seen as weaker than similar bills in America and Germany and prone to manipulation. It deals with the tricky issue of corporate hospitality with ‘great common sense,’ according to Matthew Kelly, an expert in white-collar crime at US law firm Skadden Arps.
Thus a small dinner to discuss a trade deal will be deemed a natural step in the process of doing business by the Serious Fraud Office (SFO), which investigates cases of complex fraud. But if your company wins a lucrative deal to build aeroplanes for the Chinese or power plants in Nigeria after taking a large party of company officials heli-skiing in Alaska, expect a knock on the door.
The same goes for the process of so-called facilitation payments (often called ‘speed’ or ‘grease’ payments) routinely paid to public officials to smooth the process of routine and necessary transactions. These remain illegal, as they were in previous bills.
But the SFO is set to pursue charges of facilitation payment in a pragmatic and unobstructive manner that takes into account, one London lawyer notes, the ‘difficulty of doing business in many foreign countries’. Critics of the new measures – and there are many – have pounced on the fuzzier areas. Interpretation is the act’s biggest failing. If a British-based company is accused of offering illegal inducements, it is deemed fair game by both the MoJ and the SFO.
But both public institutions appear to differ in whether to pursue corporations that may have a London listing but little tangible UK presence. SFO director Richard Alderman appears to favour prosecuting foreign companies listed here by taking a ‘wide view’ of the new power, whereas the MoJ appears to favour exemptions for foreign firms with little or no physical onshore presence. This has the potential to create enormous confusion, as well as the capacity to harm London’s reputation as a prime location for foreign firms seeking to raise money through stock flotations.
‘There is the potential here for the MoJ and the SFO to send out mixed messages to companies, and for the onus to be placed on the law courts in terms of coming to the right decision,’ says Brent McDaniel, UK head of anti-bribery and corruption at KPMG.
British companies now have until July 1 to read the Bribery Act and understand how it affects them. Oil and construction companies, and private equity players will have good reason to scrutinise the letter of the new law, if only because they tend to operate in jurisdictions where bribery is the rule not the exception.
‘If you haven’t read the act, you need to do it now, and if you haven’t assessed your new risk levels, begin a dialogue with the SFO to understand your position better,’ said Kelly.
Other uncertainties prevail. Daniel Hall, a partner at business intelligence firm GPW, fears that the new act could potentially become a whistle-blower’s charter, with disgruntled former employees ringing the SFO to cause mischief. And what if a company uncovers a case of graft carried out by an employee? The new act is unclear what steps the SFO would take, but as Daniel Nardello, founder of international l itigation f irm Nardello & Co notes, in the United States any firm that voluntarily reports internal fraud gets treated with leniency by prosecutors.
Many stand to benefit from the measures, notably London law firms as clients struggle to understand how new regulations will be defined and enforced. Yet the Bribery Act’s aims, if sometimes fuzzy, are well-intentioned.
‘To the extent that it works, businesses will benefit,’ said Nardello. ‘If the decision to award a contract is based on merit rather than who pays the biggest bribe you are going to end up with a better service.’
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