After being delayed for almost a year, the new U.K. Bribery Act finally takes effect today.
The controversial and wide-ranging legislation, rushed through Parliament before the 2010 general election, was originally scheduled to take effect last October. The new law’s start date was pushed back twice, however, to allow companies to put in place what the U.K. Ministry of Justice describes as “adequate procedures” for preventing bribery.
The final guidance, issued in April, eased worries among multinational companies by stating that a listing on the London Stock Exchange will not, in itself, make a business subject to the act. However, any company that has a U.K. office, has employees who are U.K. citizens, or provides any services to a U.K. organization will still be covered by the bill, which carries unlimited fines and an increased maximum jail term of 10 years.
Although the act is primarily designed to tighten the U.K.’s regulatory framework — the first change to the country’s bribery laws in more than a century — its broad jurisdictional reach means that the majority of U.S. public companies are likely to be affected by what some regulatory experts have described as the world’s most draconian anti-corruption legislation.
“It’s wider ranging even than the [U.S.' Foreign Corrupt Practices Act],” said Lord Peter Goldsmith, the former U.K. attorney general, now head of Debevoise & Plimpton’s European litigation practice. ”It’s going to affect all companies with business in the U.K., even if they’re not incorporated here. The enforcement agencies have greater powers and the penalties are much tougher than under previous U.K. law. Boardrooms throughout America and beyond should have this on their agenda.”
While the U.K. and U.S. laws will regularly act in tandem, there are a number of key differences. Most fundamentally, where the U.S. FCPA deals only with governmental bribery, the U.K. act also covers corruption between commercial entities. And where U.S. law requires prosecutors to prove intent and awareness of the bribe at a senior level, the Bribery Act imposes strict liability on any company that fails to prevent bribery from taking place, regardless of awareness or intent. This not only covers bribes made by its own employees, but also by any individual “associated” with the company, a fact likely to concern smaller enterprises, which are more likely to rely on third-party agents for international matters.
