FAQs on THE IMPLICATIONS FOR BUSINESSES IN ASIA WHEN UK BRIBERY ACT COMING INTO FORCE ON 1 JULY 2011
Q: How many categories of offence contains on Act?
A: The Act contains four categories of offence:
The Section 1 general offence of offering, promising or giving a bribe to another person
The Section 2 general offence of requesting, agreeing to receive or receiving a bribe from another person
The Section 6 specific offence of bribing a foreign public official
The Section 7 strict liability corporate offence of failing to prevent bribery
Q: What are the effects of Section 7 on Businesses in Asia?
A: Perhaps the most contentious of the four categories of offences is section 7, the new strict liability corporate offence of failure to prevent bribery, which may be committed by a company (wherever it is incorporated or formed) which "carries on a business or part of a business" (a term which is not defined in the Act) in the UK. The offence may apply to bribery conducted anywhere in the world by a person with no connection to the UK. The offence applies also to UK incorporated companies irrespective of where they carry on business or where the bribery occurs. The offence is triggered if a person associated with the company bribes another person, intending to obtain or retain business or a business advantage for the company. A person is " associated with a company" if he performs services on behalf of or for the company, potentially catching a company's agents, employees, subsidiaries, intermediaries, joint venture partners and suppliers.
However the concerns of companies around the world who maintain business links with the UK were alleviated somewhat by the Guidance. The Guidance confirms that although the final determination of the meaning of the crucial term "carries on a business or part of a business" is to be made by the courts, the expectation is that organizations without a demonstrable presence in the UK will not come within the scope of this term, with the Guidance stating that a listing on the London Stock Exchange or the presence of a subsidiary in the UK will not, of themselves, be enough to warrant a finding that an organization is "carrying on a business" in the UK.