As U.S. Waits for FCPA Guidance, UK Bribery Act Gets an UpdateCatherine Dunn Corporate Counsel
10-10-2012
As corporate lawyers have been waiting patiently for the U.S. Department of Justice to issue updated guidance on the Foreign Corrupt Practices Act, the United Kingdom’s Serious Fraud Office came out with some unexpected guidance of its own, clarifying how prosecutors on the other side of the Atlantic will prosecute bribery.
The guidance addresses three primary areas: facilitation payments, business expenditures (such as hospitality and gifts), and self-reporting.
Initial reactions from lawyers centered on the latter. Reynolds Porter Chamberlain partner Richard Burger told Reuters: “The new SFO policy means that self-reporting by businesses of potential incidents of bribery and corruption, which used be like a cozy fireside chat, has been replaced by a much a stricter regime.”
According to the SFO’s website: “Self-reporting is no guarantee that a prosecution will not follow. Each case will turn on its own facts.”
That sentiment is reiterated in an online Q-and-A section about the new policies:
Will the SFO communicate with corporate bodies about their past or future conduct?
The SFO encourages corporate self-reporting, and will always listen to what a corporate body has to say about its past conduct; but the SFO offers no guarantee that a prosecution will not follow any such report.
Even if the SFO decides not to prosecute a company that self-reports bribery, the office stated that it “reserves the right (i) to prosecute it for any unreported violations of the law; and (ii) lawfully to provide information on the reported violation to other bodies (such as foreign police forces).”
In the U.S., prosecutors have encouraged companies to self-report corruption in exchange for greater leniency. But some, such as CorpCounsel.com columnist Alexandra Wrage, an antibribery compliance expert, have questioned whether or not it’s worth it for companies to turn themselves in. “A voluntary disclosure takes its toll on a company’s reputation,” she wrote in a recent Compliance Insider column.
The U.K.’s antibribery law took effect in July 2011. But earlier this year, the Organization for Economic Cooperation and Development cast a critical eye on the SFO’s stance on self-reporting. As the Wall Street Journal noted:
The OECD said in March that the SFO’s definition of self-reporting “may be overly generous.” In its report, the OECD said the SFO acknowledged a problem with the definition, and agreed to revisit its policy.
In April of this year, the U.K. office got a new director, David Green. The updated guidance states that the purpose of the revision is to:
- restate the SFO's primary role as an investigator and prosecutor of serious or complex fraud, including corruption;
- ensure there is consistency with other prosecuting bodies; and
- meet certain OECD recommendations.
The SFO’s new guidance came just before the annual meeting of the OECD’s Working Group on Bribery, which convenes in Paris on Wednesday .
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