Bribery Act & Proceeds of Crime - Written by on Wednesday, November 30, 2011 15:01 - 1 Comment

The view from accross the channel & the SFO approach to long arm jurisdiction

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On Monday we had the pleasure of liaising with some colleagues in France.  We spoke about the Bribery Act and French anti-corruption laws.

We know that France has anti-corruption laws and that they are not a million miles apart from the Bribery Act.  However, French jurisdiction is limiting.

But there is an elephant in the room.  There is, we were told, no enforcement of the French anti-corruption laws and absolutely no political will to enforce them either.

There is some disquiet about the SFO’s various statements that they will enforce against overseas parented businesses.

That said, on balance the UK is applauded for its ‘brave’ step in taking a lead on anti-corruption enforcement by our French cousins.

We frequently hear the complaint that the Bribery Act means that UK companies cannot play on a level playing field in international markets.  It is very important for ethical UK corporates that unethical corporates are targeted.

Fast forward 24 hours and the Director of the SFO has spelt out again the SFO’s approach when looking at overseas parented businesses and the broad territorial application of the Bribery Act.  In an article by the Director of the SFO (which should be compulsory reading by the way) on Professor Mike Koehler’s excellent FCPA Professor blog Mr. Alderman repeated the SFO approach.  He said:

“we have been examining the activities of a number of foreign companies with a UK business presence who are involved in bribery in other countries.

We have found a number of these. But what we are looking for in particular is evidence that they have undermined ethical UK businesses. If they have not, then although there may be a technical Bribery Act offence, it is not the type of case where I would want to use our scarce resources, or take up the valuable time of UK courts and juries.

So we have seen instances of bribery involving foreign companies where we have decided not to take them forward for a full investigation, because we cannot see that a UK company lost out.  Other authorities might choose to take action, but it is not a priority for the SFO.

However, there are other cases where we have found potential damage to UK companies and their employees. It is still early days – but I can confirm that we are looking at some cases to see whether or not to start using our compulsory powers.

…make no mistake, these cases are a high priority for us.”

The comments underscore three key points.

First, the UK is not taking on the role of global cop and looking to prosecute bribery in circumstances unless there is a UK public interest to do so – this will be so if UK PLC is disadvantaged.  It is important that the SFO makes on good on this promise.

Second, the SFO is already considering specific cases for investigation.

Third, overseas parented businesses who use unethical practices to compete with UK PLC are a prime target for the SFO.

 

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