The new law was scheduled to become effective in April of 2011 but implementation was delayed whilst the Government provided clarification through a Guidance document which sought to re-assure companies that the Act was designed to deal with significant cases of corruption; not create a wave of prosecutions for trivial cases. The Act came into effect on 1st July 2011. The guidelines talk of a desire by the authorities to create a level playing field. It is not designed to prevent corporate hospitality which is aimed at establishing and cementing client/customer relationships, but rather to stop companies “buying” business they would not otherwise win.
The relevant sections of the law as they impact upon clients operating in Asia are ss1, 6 & 7. In particular S6 relates to bribery of a foreign official (the terms “bribery” and “official” are broadly defined).
The offence is committed where a person offers, promises or gives financial advantage to an official to perform their duties in a particular manner which results in the person obtaining or retaining business or an advantage in business.
There is a full defence if your organization is able to show that you had adequate procedures in place to prevent bribery.
Whether your procedures are considered adequate will depend on the risk of bribery occurring in any given situation which is often a factor of the economic and political environment in which you operate. The risk of bribery and the expectations of a strong corporate policy to prevent bribery will be far a greater in a country where bribery is common place. It is for the senior managers of your organization to assess this risk and determine what, if any policies are necessary.
At South Asia Law we would be pleased to discuss any points of concern and assist you in assessing your potential exposure. The UK Government Guidance brochure is a useful starting point.
Please contact Gary Biesty at [email protected]