International - Written by on Thursday, February 16, 2012 9:54 - 0 Comments

Not sure if you are dealing with a Foreign Public Official – The SFO advice on what to do.

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The closest offence to the US FCPA is the Section 6 Offence of Bribery Of Foreign Public Officials.

The offence has a much lower threshold than the broader bribery offences of giving and receiving a bribe.

Broadly speaking while the offences of bribing and receiving a bribe require an element of impropriety the Bribery of a Foreign Public Official offence merely requires an intention influence.

The lower threshold was inserted to make it easier to prosecute the offence.  This objective has been achieved.

A lot of bunk (that’s a technical term btw) has been talked about how this offence will be applied in practice.

The answer is that a healthy dose of common sense should be applied, a policy implemented after the usual risk assessment etc. and employees, agents and others should follow the rules in the policy.

However, the offence does have a lower threshold and it will be important to understand whether or not you are dealing with a Foreign Public Official.

This can be easier said than done.  For example, in some jurisdictions state control over businesses means that a seemingly private enterprise will in fact be staffed by Foreign Public Officials.  Classic examples include Dr’s and other healthcare employees.  However, the position can be less clear in the case of, say, a bailed out state owned bank.

The question has been litigated in the US and the US courts have given some guidance.  However, US experts say that the question is not a simple one and will likely require expert evidence at trial.  Of course the UK and the US are two nations divided by a common language and our rules are similar – but different.

For those who are trying to solve the conundrum the SFO Director recently had this to say:

“In deciding whether somebody is a foreign public official we look beyond issues such as shareholdings.  We look to see whether in a real sense the Government controls the particular organisation.  Corporations sometimes say to the SFO that they are not sure whether they are dealing with foreign public officials when they are negotiating with foreign corporations.  The SFO advice is to make sure that they deal with this in a safe way.  If they are in doubt whether the Government controls the particular corporation or authority, then they should proceed on the basis that it does have control.”


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