presents presents UK Anti-Bribery Act: Meeting the Tough New Requirements Tough New Requirements Minimizing Corruption Risks Under Both the FCPA and UK Law A Live 90-Minute Teleconference/Webinar with Interactive Q&A A Live 90-Minute Teleconference/Webinar with Interactive Q&A Today's panel features: Monty Raphael, Special Counsel, Peters & Peters , London, England Greta Lichtenbaum, Partner, O'Melveny & Myers , Washington, D.C. T Tom Sprange, Partner, Steptoe & Johnson , London, England. S P t St t & J h L d E l d Wednesday, June 9, 2010 The conference begins at: The conference begins at: 1 pm Eastern 12 pm Central 11 am Mountain 10 am Pacific 10 am Pacific You can access the audio portion of the conference on the telephone or by using your computer's speakers. Please refer to the dial in/ log in instructions emailed to registrations.
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UK Anti-Bribery law and its requirements and its requirements Monty Raphael Special Counsel, Peters & Peters Special Counsel, Peters & Peters 4
5 New offences New offences
Section 1: active bribery • Person (“P”) is guilty of an offence if: Person ( P ) is guilty of an offence if: – P offers, promises or gives a financial or other advantage to another person, and – P intends the advantage: P intends the advantage: • to induce a person to perform improperly a relevant function or activity, or • to reward a person for the improper performance of such a t d f th i f f h function or activity. – Does not matter whether the person to whom the advantage is offered etc. is same person who is to perform / has performed ff d t i h i t f / h f d function – Can be done through third party 6
Section 1: active bribery • Or if: Or if: – P offers, promises or gives a financial or other advantage to another person, and – P knows or believes that the acceptance of the advantage would itself constitute the improper performance of a relevant function or activity performance of a relevant function or activity. • Can be done through third party • Can be done through third party 7
Section 2: passive bribery • A person (‘R’) is guilty of an offence if: A person ( R ) is guilty of an offence if: – R requests, agrees to receive or accepts a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly (whether by R or another person). – R R • requests, agrees to receive or accepts a financial or other advantage, and • the request, agreement or acceptance itself constitutes the improper performance by R of a relevant function or activity relevant function or activity. 8
Section 2: passive bribery – R requests, agrees to receive or accepts a financial or R requests, agrees to receive or accepts a financial or other advantage as a reward for the improper performance (whether by R or another person) of a relevant function or activity relevant function or activity. – In anticipation of or in consequence of R requesting, agreeing to receive or accepting a financial or other g g p g advantage, a relevant function or activity is performed improperly— • by R, or by R or • by another person at R’s request or with R’s assent or acquiescence. q 9
Section 2: passive bribery • In all cases, does not matter , – whether R requests, agrees to receive or accepts (or is to request, agree to receive or accept) the advantage directly or through a third party, – whether the advantage is (or is to be) for the benefit of R or another person. • Last three cases: does not matter whether R knows or believes that the performance of the function or activity is improper. • Last case: where person other than R is performing the p p g function or activity, it also does not matter whether that person knows or believes that the performance of the function or activity is improper. function or activity is improper. 10
Section 3: ‘relevant function / activity’ • any function of a public nature, any function of a public nature, • any activity connected with a business, • any activity performed in the course of a person’s employment, • any activity performed by or on behalf of a body of persons, whether corporate or not; persons whether corporate or not; • when a person performing the function or activity is – expected to perform it in good faith; – expected to perform it impartially; – in a position of trust by virtue of performing it • Counted even if no connection with / performed outside • Counted even if no connection with / performed outside UK 11
Section 4: relevant expectation • Section 4: ‘Improper performance’: Section 4: Improper performance : – Performed in breach of a relevant expectation, and – Is to be treated as being performed improperly if there is a failure to perform the function or activity and that failure is itself a to perform the function or activity and that failure is itself a breach of a relevant expectation. • ‘Relevant expectation’: – Good faith / impartially: the expectation mentioned – In position of trust: any expectation as to the manner in which, or the reasons for which, the function or activity will be performed that arises from the position of trust mentioned in that condition. • Inclusion of past performance 12
Section 5: expectation test • What a reasonable person in the UK would expect in What a reasonable person in the UK would expect in relation to the performance of the type of function or activity concerned. • Local custom or practice is to be disregarded unless it is L l t ti i t b di d d l it i permitted or required by the written law applicable to the country or territory concerned. y y • Written law: – any written constitution, or provision made by or under legislation applicable to the country or territory concerned or legislation, applicable to the country or territory concerned, or – any judicial decision which is so applicable and is evidenced in published written sources. 13
Section 6: bribery of foreign public officials • Person (“P”) who bribes a foreign public official (“F”) is ( ) g p ( ) guilty of an offence if P’s intention is to influence F in F’s capacity as a foreign public official. • P must also intend to obtain or retain business / advantage in conduct of business. d t i d t f b i • P bribes F if, and only if— – directly or through a third party, P offers, promises or gives any fi financial or other advantage— i l th d t • to F, or • to another person at F’s request or with F’s assent or acquiescence, and acquiescence, and – F is neither permitted nor required by the written law applicable to F to be influenced in F’s capacity as a foreign public official by the offer, promise or gift. 14
Section 6: bribery of foreign public officials • Influencing in capacity as a foreign public official: g p y g p includes— – omission to exercise functions, and – any use of F’s position as official, even if not within authority. any use of F s position as official, even if not within authority. • ‘Foreign public official’: individual who – holds a legislative, administrative or judicial position of any kind, whether appointed or elected of a country or territory outside the whether appointed or elected, of a country or territory outside the United Kingdom (or any subdivision of such a country or territory), – exercises a public function— • for or on behalf of a country or territory outside the United Kingdom (or any subdivision of such a country or territory), or • for any public agency or public enterprise of that country or territory (or subdivision), or • is an official or agent of a public international organisation. 15
16 Who is covered? Who is covered?
Corporates • Liable for offences under sections 1, 2 or 6 Liable for offences under sections 1, 2 or 6 • Also liable under Section 7: Failure of commercial organisations to prevent bribery • Relevant commercial organisation (‘C’) guilty if a person R l t i l i ti (‘C’) ilt if (“A”) associated with C bribes another person intending – to obtain or retain business for C, or – to obtain or retain an advantage in the conduct of business for C. 17
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