Sujet: The Bribery Act
TEXT OF THE QUIZ
SLIDE 1: In the following slides you will find examples highlighting the extraterritoriality situation. Keep in mind that courts will grant their decision regarding:
- The degree of control of the organization
- The intention of the person or entity who committed the bribery
- The common sense approach
Case 1: A big company is incorporated in the UK. One of its subsidiaries is located in France. Neither the UK nor the French companies have put in place a program against corruption. A bribe is paid in France by an employee of the French company to a local public official in order to retain a local contract. The UK company has a high degree of control on the subsidiary, top management is appointed by the UK entity who gives the authorization to bid. Will the UK and French organizations be sentenced ? YES
Case 2: The same UK company is under negotiation with a worldwide company incorporated in Marketland. This company has a subsidiary in France. In case of success of the negotiations, the French subsidiary will operate a new contract. A bribe is paid by an employee of the French company to a foreign public official in Marketland in order to obtain an official agreement. But the UK company has developed an anti-Bribery program in accordance with the guidance principles. Will the UK and French organizations be prosecuted? YES Both UK and French companies are likely to fall under section 7 of the Bribery Actbecause the French company is an associated person and the UK Company failed to prevent bribery.
Case 3: Here, the situation is different. A French incorporated company has a branch in England. A French employee of the French company paid a bribe to the government of Marketland in order to gain a new contract for the sole benefit of the French Company. No compliance program was developed in the UK or in France. Will the UK and French organizations be prosecuted ? YES Because the French company has a demonstrable presence in the UK; the Serious Fraud Office could investigate in the UK and in France.
Case 4: In this case the UK and the French companies are not part of the same group. They merely have commercial relations as the French company sells good to the UK company. The French company is dealing with an agent who bribed a local official. Will the UK and French organizations be sentenced ? NO. In this example there is no common project between the two partners and none of them is acting for or on behalf of the other. The French company is not an associated person.
Case 5: Absolute defense
In this case, the UK company has a branch in France. Both have put in place anti-bribery program in accordance with the Bribery Act and Guiding Principles. A bribe has been paid by a French employee to a local public official. Will the UK and French organizations be sentenced? No
Because they have put in place anti-bribery procedures. They can use these procedures as a full defense against prosecution based on Section 7 of the Bribery Act.