For the past decade or so, the UK has been criticized for its Laissez-faire attitude toward commercial bribery, particularly due to its glaring gap in enforcement legislation. As of July 1, the UK “Bribery Act 2010” went into effect, and in many ways it leapfrogs the 34-year-old American equivalent—the Foreign Corrupt Practices Act (FCPA).
While ostensibly similar, the Act differs from the FCPA in a number of ways, many of which broaden applicability. For example, unlike the FCPA, the Act covers bribes to both the public and private sectors, and does not make an exception for facilitation payments (small payments given to public officials to speed up a routine service). Similarly, the Act applies to all organizations that do business in the UK, even if they’re not based there, and even if the bribery occurs in another country.
Organizations looking for clarity should certainly start with an analysis of how well their existing anti-bribery procedures (many likely designed with the FCPA in mind) correlate to the six principles. The hope of many is that the Bribery Act won’t inherently require a complete reworking of policies for entities trying to comply with the Act. Instead, a more measured and reasonable goal should be to have compliant entities examine the Act to see if any augmentation is necessary. Fortunately, the Guidance principles are peppered with terms like “proportionate,” “risk-based” and “practical,” which should give solace to the entities that had significant indigestion when the Act was first released.
Traditional e-discovery solutions may very well be called into duty to help augment an organization’s “adequate procedures,” particularly regarding provision No. 3 (risk assessment) and No. 4 (due diligence). These two principles specifically call out procedures that proactively facilitate: