You are here: Home / Archives for Ministry

Impact of the Bribery Act 2010 on Companies in the Energy Sector – Energy Business Review

April 27, 2011 By Leave a Comment

On 30 March 2011, the Ministry of Justice (MoJ) published its long-awaited Guidance on the Bribery Act 2010 (the “Act”) and confirmed that the Act will come into force on 1 July 2011.

The Act is arguably more draconian than even the US Foreign Corrupt Practices Act (FCPA) – for example, it prohibits bribery in the private sector; prohibits any form of facilitation payment and has no carve out for promotional expenditure. The Act represents a significant tightening of anti-corruption legislation in the UK.

After the publication of the Act in April 2010 and the draft guidance in autumn 2010, commentators and business leaders expressed concerns that some normal industry standard practices, including basic corporate hospitality, might fall foul of the Act; potentially putting UK business at a disadvantage to their US competitors. The biggest concern is that the new strict liability offence of failing to prevent a bribe might make companies liable for the acts of contractors, agents, joint venture partners and subsidiaries over which they have little control – no matter where in the world those acts take place.

While the Guidance has eased some of the concerns a degree of uncertainty remains as to when companies incorporated outside the UK might be subject to the Act and in what circumstances companies might be liable for bribes made by “associated persons”.

Throughout the Guidance the MoJ emphasises that compliance is “largely about common sense, not burdensome procedures”. Whilst this, and the related emphasis on proportionality, will offer reassurance to companies seeking to comply with the legislation, the MoJ also acknowledges that many of these issues are fact-sensitive and will ultimately need to be tested by the courts.

The basic offence

The basic offence of bribery applies across the board both in the UK and overseas and both in the public and private sector. Bribery is essentially defined as an intention to induce or reward improper conduct. This has quite a convoluted definition in the Act but it boils down to an intention that the “advantage” should cause the recipient to act in a way in which he would otherwise not be expected to act. There is no separate requirement of acting dishonestly or corruptly with the Act marking a conscious attempt to move away from such subject of concepts which are notoriously slippery and difficult to explain to juries.

via Impact of the Bribery Act 2010 on Companies in the Energy Sector – Energy Business Review.

Filed Under: From The News Tagged With: , , , , , , , , ,

Bribery Act is not perfect but brings UK into line with OECD | Claudius O Sokenu | Law | guardian.co.uk

February 4, 2011 By Leave a Comment

When the Ministry of Justice delayed the Bribery Act for the third time this week the Organisation for Economic Co-operation and Development (OECD) threatened to put the UK on an export blacklist along with Nigeria, Russia and Israel and others.

As drafted the act brings the UK in line with its OECD treaty obligation, but it has been criticised for being jurisdictionally overbroad and placing UK companies at a competitive disadvantage in a shrinking global economy.

The same sorts of criticisms were levied against its sister US statute, the Foreign Corrupt Practices Act (FCPA), but that has matured into a potent enforcement tool and there is no reason the Bribery Act cannot do the same.

The UK act wider in scope than the FCPA because it covers bribery of both public officials and private citizens, uses a more expansive definition of what constitutes a bribe and applies a strict liability standard for failing to prevent the payment of bribes by “associated persons.”

On the surface the act also appears to have a broader jurisdictional reach than the FCPA. It potentially covers bribes paid anywhere in the world by anyone associated with a UK company to anyone, including foreign government officials.

This may be a distinction without a difference, however, because of the way the US Securities and Exchange Commission and the Department of Justice enforce the FCPA.

Importantly, the Bribery Act does not provide the same express exceptions and affirmative defences found in the FCPA; parliament preferred to keep the scope broad and leave application in the hands of the SFO.

via Bribery Act is not perfect but brings UK into line with OECD | Claudius O Sokenu | Law | guardian.co.uk.

Filed Under: From The News Tagged With: , , , , , , , , ,

UK Introduces Practice Direction 31B Addressing the Disclosure of Electronic Documents : Electronic Discovery Law

December 17, 2010 By Leave a Comment

Effective October 1, 2010, the UK has introduced Practice Direction 31B addressing in detail the disclosure of electronic documents.  According to the Ministry of Justice, this new Practice Direction “aims to focus the parties on the sources of electronic material and give guidance to those with less experience of dealing which such issues.”  A comprehensive discussion, the Practice Direction addresses a myriad of topics, including preservation, topics for discussion between the parties, reasonable searching, keyword and automated searching, the disclosure of metadata, and the format of production.

via UK Introduces Practice Direction 31B Addressing the Disclosure of Electronic Documents : Electronic Discovery Law.

Filed Under: From The News Tagged With: , , , , , , , , ,

UK Bribery Act Guidance Induces No One

November 17, 2010 By Leave a Comment

(Westlaw Business) The UK is cracking down on corruption with a new anti-bribery law that will effectively flip the burden of proof from prosecutors to defendants in bribery cases. With almost a presumption of guilt, companies operating in the UK will need to be able to establish that they have taken robust measures to prevent bribery for fear of facing unlimited fines or jail time if they do not.

The Bribery Act (“the Act”) paves the way for Britain to become a world leader in anti-sleaze by codifying and significantly expanding existing bribery laws throughout the UK. But with recent Ministry of Justice’s guidance on the Act leaving more questions than answers, businesses and legal advisers are scratching their heads as to how exactly to avoid being caught.

The Bribery Act

The new Bribery Act applies to all companies operating within the UK (including overseas companies) and through the creation of a new strict liability offence (an offence where prosecutors need not establish intent to commit a crime) and third party vicarious liability has reversed existing bribery rules to place the onus on businesses to prove that they are not involved in bribery either through their employees or connected third parties.

The Bribery Act will apply throughout Britain from April 2011 and will, unusually for the UK, extend to even the remotest parts of Scotland and Northern-Ireland. Seeking to ensure the highest standards of integrity, it will lead the way in the UK’s offensive on international corruption but has caused consternation among companies and law firms alike who fear that the Act’s far ranging provisions may mean that they become liable for offences committed outside of their control.

With only a statutory defence of “adequate procedures” as a way out of bribery prosecutions many are wondering exactly what needs to be done to avoid prosecution. Particularly confusing is the somewhat bizarre use of the word “adequate”. With the section 7 offence only biting on the occurrence of bribery, many are puzzled how a company could argue that it had adequate procedures in place to prevent bribery when ostensibly it didn’t. Of little solace is the Ministry of Justice’s guidance that gives some suggestion as to what will be considered adequate in the eyes of prosecutors.

via UK Bribery Act Guidance Induces No One.

Filed Under: From The News Tagged With: , , , , , , , , ,

Ministry of Justice consults on Bribery Act guidance – International Law Office

October 25, 2010 By Leave a Comment

On September 14 2010 the Ministry of Justice opened a consultation on its draft adequate procedures guidance. The government is obliged to produce such guidance under Section 9 of the Bribery Act 2010 and has pledged to consult and publish a final version before the act comes into force in April 2011.

The ministry is seeking the views of businesses and other interested parties. In his introduction Kenneth Clarke, the lord chancellor and secretary of state for justice, states that:

“In deciding what bribery prevention measures best suit their particular circumstances, commercial organisations should be assisted by the guidance published under Section 9 of the Act. It is essential that any guidance the government publishes is informed by the wealth of knowledge, experience and expertise to be found outside government, in (for example) the business community and non-governmental organisations.”

The consultation documents include:

a questionnaire for interested parties comprising five questions;

draft guidance focusing on six key principles;

additional commentary on some specific issues, such as facilitation payments; and

five illustrative examples – which are not part of the guidance – focusing on key risk areas, such as hospitality.

via Ministry of Justice consults on Bribery Act guidance – International Law Office.

Filed Under: From The News Tagged With: , , , , , , , , ,

German ministers told to avoid BlackBerrys, iPhones – The China Post

August 11, 2010 By Leave a Comment

The German government said Monday ministers and senior civil servants have been told not to use iPhone and BlackBerry mobile devices as the interior minister warned of a “dramatic” rise in cyber attacks.

An interior ministry spokesman told reporters they had been told to use instead Simko devices offered by Deutsche Telekom because of “urgent” advice from the federal IT security agency, the BSI.

BlackBerry smartphones, made by Canadian firm Research in Motion (RIM), offer a high level of protection for data and emails, but Berlin is reportedly uneasy that all data pass though two RIM centres in Britain and Canada.

Thomas de Maiziere, the interior minister, told the Handelsblatt business daily that there was a risk that malicious software might find its way onto government and corporate IT networks via the devices.

via German ministers told to avoid BlackBerrys, iPhones – The China Post.

Filed Under: Tech Bytes Tagged With: , , , , , , , , ,

GE to Pay $23.4 Million to Settle SEC Oil-for-Food Charges | Business Ethics

July 28, 2010 By Leave a Comment

General Electric Co. agreed to pay $23.4 million to settle charges that two GE subsidiaries — along with two other subsidiaries of public companies that have since been acquired by GE — participated in a $3.6 million kickback scheme with Iraqi government agencies to win contracts to supply medical equipment and water purification equipment.

The U.S. Securities and Exchange Commission charged in a civil suit that from 2000 to 2003 the subsidiaries violated the U.S. Foreign Corrupt Practices Act by paying bribes in the form of cash, computer equipment, medical supplies, and services to the Iraqi Health Ministry or the Iraqi Oil Ministry in order to obtain valuable contracts under the U.N. Oil for Food Program.

According to the complaint, GE subsidiaries Marquette-Hellige and OEC-Medical Systems (Europa) AG made approximately $2 million in kickback payments to the Iraqi government under the Oil for Food Program.

via GE to Pay $23.4 Million to Settle SEC Oil-for-Food Charges | Business Ethics.

Filed Under: From The News Tagged With: , , , , , , , , ,

Post europe – benchmark bribery legislation for europe – Postonline

July 26, 2010 By Leave a Comment

European organisations breathed a sigh of relief on 20 July 2010 when the British Ministry of Justice announced a delay in the implementation of the UK Bribery Act. The act was due to come into force in October 2010, but will now be delayed until April 2011. Although it is tempting to view it this way, these extra few months should not offer a welcome rest bite period for businesses that are unsure how they will comply with the act.

The Bribery Act has struck fear into the hearts of many organisations that see financial incentives as an integral part of their work since it received Royal Assent in April 2010. The act replaces much, and codifies the remainder, of the various fragments of the UK’s existing anti-corruption legislation, dating back to 1889 with the Public Bodies Corrupt Practices Act. It heralds a new era in the UK’s fight against corruption by establishing distinct general criminal offences for those “offering” and those “accepting” bribes, a new offence for the failure of commercial organisations to prevent bribery by persons acting on their behalf and a discreet offence for those who bribe foreign public officials.

via Post europe – benchmark bribery legislation for europe – Postonline.

Filed Under: From The News Tagged With: , , , , , , , , ,