Bribery Act Guidance: A Common Sense, Risk-Based Approach | White & Case LLP International Law Firm, Global Law Practice
Bribery Act Guidance: A Common Sense, Risk-Based Approach

Bribery Act Guidance: A Common Sense, Risk-Based Approach

Further to our last client alert on the Bribery Act, the government has published its long-awaited "Guidance about procedures which relevant commercial organisations can put into place to prevent persons associated with them from bribing" and has confirmed that the Act will now come into force on 1 July this year.

The government guidance (which has been materially revised from the draft published late last year and which has a wider scope than is suggested by its title), and the Joint Prosecution Guidance from the Serious Fraud Office (SFO) and the Director of Public Prosecutions were both published yesterday. They make clear that companies should adopt a risk-based and proportionate approach and address certain aspects of the Act that were identified by the business community as being of concern, namely:

(1) whether a non UK-based company will fall within the scope of the corporate offence merely by reason of a listing on the London Stock Exchange; and
(2) the boundaries of the corporate offence in respect of acts by suppliers, joint venture partners, subsidiaries and other third parties.

The guidance also addresses other areas of the Act, namely:

(1) the Act's application to typical corporate hospitality expenditure; and
(2) facilitation payments.

After both sets of guidance, unanswered questions concerning the scope and application of the Act remain to be addressed through the exercise of prosecutorial discretion and judicial decision, resulting in continuing uncertainty for businesses. We anticipate that the SFO will be looking to bring test cases soon after the Act comes into force on 1 July 2011. Accordingly, companies should use the next three months to review their procedures and culture in line with the six principles set forth in the guidance and discussed below.

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