International Anti-corruption day 2015 - Bribery Act 2010 presentation.
1. The UK’s Bribery Act 2010:
How - and why - does a foreign law affect
Romania?
Neil McGregor
British Solicitor,
Managing Partner
International Anti-corruption Day,
Bucharest, 9 December 2015
2. The logo for this presentation:
… is provided by the
international/UN campaign
co-ordinated by UNODC …
…but the presentation has been
prepared by
3. Some (very old) News!
Bribery and corruption are illegal in
Romania.
Romanian law imposes significant
penalties / sanctions on those who
break Romanian laws against bribery
and corruption.
4. Some (more recent) News!
The Romanian authorities responsible for enforcing
Romanian laws against bribery and corruption
(Poliția, DNA, ANI, DIICOT, ANAF, etc.) have
become very active in investigating and
prosecuting cases.
Please see television, the internet and the press for
recent reports of high-profile arrests and
investigations in Romania.
5. Bribery & Corruption: what do they look like?
• șperţ
• ciubuc
• bacşiş
• ruşfet
• dijmă
• cadou
• atenţie
• plocon
• prinos
• ofrandă
• danie
• înzestrare
• peșcheș
• șpagă
• paraîndărăt
• sfănțuilă
• procent
• a lua dreptul
• mangă
• mâzdă
• dăruşag
• cinste
• prosfora
…or in other words...
9. What is Bribery?
Bribing someone else (I):
• An offer, promise or gift
• A financial or other advantage
• Intended to induce or reward improper
performance
10. What is Bribery?
Bribing someone else (II):
• An offer, promise or gift
• A financial or other advantage
• Knowledge that acceptance of the
advantage is itself improper performance
11. What is Bribery?
Being bribed (I):
• Requests, agrees to receive or receives
• A financial or other advantage
• Intending improper performance
12. What is Bribery?
Being bribed (II):
• Requests, agrees to receive or receives
• A financial or other advantage
• The request, agreement to receive or receipt
of the advantage is itself improper
performance
13. What is Bribery?
Being bribed (III):
• Requests, agrees to receive or receives
• A financial or other advantage
• As a reward for improper performance
14. What is Bribery?
Being bribed (IV):
• In anticipation or in consequence of a
request, agreement to receive or receipt
• A financial or other advantage
• Improper performance occurs
15. It does not matter whether:
• the person being bribed is the person
who is responsible for the improper
performance
• the financial or other advantage is for
the benefit of the person being bribed or
for someone else
• the approach is direct or indirect
16. It’s a cultural thing…
The concept of “proper performance”.
What is “proper performance”? Apply the
Expectation Test
17. The Expectation Test
The standard is what a reasonable
person in the UK would expect.
Any local custom or practice is to be
disregarded UNLESS it is permitted or
required by the [local] written law.
18. Expectations in:
• Public functions
• Business activities
• Activities of employees
• Activities on behalf of a body of
persons.
20. In case of any doubt about foreign public
officials…
An offence:
• In order to retain or to gain business or a business advantage
• Offer, promise or giving of any financial or other advantage
• To a foreign public official or to someone else at the
official’s request or acquiescence
UNLESS
Written law permits or requires the official to be influenced by
the offer, promise or gift.
21. So…
We have a single offence of “bribery” and an intellectual
definition of what “bribery” actually is – including the
reference the expectations of a reasonable person in the
UK.
Arguably this is clearer than Romanian law, but the
essence is the same: bribery is illegal.
But bribery still happens….
22. The big change – making companies responsible
for
preventing bribery.
23. An automatic (strict liability) offence
“A relevant commercial organisation (“C”)
is guilty of an offence … if a person (“A”)
associated with C bribes another person
intending:
(a) to obtain or retain business for C; or
(b) to obtain or retain an advantage in the
conduct of business for C.”
24. What are “relevant commercial organisations”?
• British companies and firms; and
• “any other body corporate (wherever
incorporated) which carries on a
business, or a part of a business, in
any part of the UK”
25. Who is an “associated” person?
• A person (“A”) is associated with C if A
performs services for or on behalf of C.
• The precise capacity in which services
are performed does not matter.
• “A” may be C’s employee, agent or
subsidiary … AND
26. Whether or not A is a person who
performs services for or on behalf of C
is to be determined by reference to all
the relevant circumstances and not
merely by reference to the nature of the
relationship between A and C.
Remember!
27. “…carries on a business or a part of a business…”
What does this mean?
What could be excluded?
• Shares being listed?
• A bank account?
• Internet traffic?
28. The key to the international reach of the Bribery
Act
The City of London
29. The scope of the offence…
…is extremely wide.
Is your company carrying on a business
or a part of a business in any part of the
UK?
Is it “associated” with another company
which is?
30. How can UK concept of “bribery” apply in
Romania?
“An offence is committed … irrespective
of whether the acts or omissions which
form part of the offence take place in the
UK or elsewhere”.
So you do need to consider the UK
law…
31. The defence…
“…it is a defence for C to prove that C had
in place adequate procedures designed to
prevent persons associated with C from
undertaking such conduct.”
But what are “adequate procedures”?
32. What the UK Ministry of Justice thinks…
The Six Principles
39. What a judge or a jury will think…
?
If the procedures failed to prevent bribery, were
they “adequate”? Why bother to try to comply?
Are your procedures subject to independent
(external) review?
40. What a judge or a jury (or you) will think…
• [Investigator]: Okay, great, thank you. Just focussing on the risk of
bribery, were you ever aware of any risk assessment procedures that
the bank adopted in order to identify bribery?
• Bank Employee: No, not, not from what I could recall, no.
• [Investigator]: Okay. And did you know if the bank ever established any
objectives to counter bribery?
• Bank Employee: No, I can't, I can't think of anything, I can't recall
anything.
• [Investigator]: Okay. Did Mr [•], as your manager, ever issue a statement
about bribery?
• Bank Employee: I can't recall anything.
Source: SFO -v- Standard Bank Plc, Statement of Facts, Appendix 3, para 5
41. What a judge or a jury (or you) will think…
• Bank Employee: … I do recall plenty of compliance-related quizzes being offered
on the Internet which I think is pretty standard practice at most banks these
days.
• [Investigator]: Was that pass and fail or.?
• Bank Employee: I think so.
• [Investigator]: And were there any kind of refresher sessions afterwards?
• Bank Employee: Not that I can recall.
• [Investigator]: And do you remember passing them or failing them?
• Bank Employee: I remember passing them all.
• [Investigator]: Okay.
• Bank Employee: It was a fun challenge to see how quickly you could pass
them.
Source: SFO -v- Standard Bank Plc, Statement of Facts, Appendix 3, para 3
42. It really is a cultural thing…
..not of countries, but of companies – the
aim of this law is to change corporate
culture.
Too ambitious?
Think Health and Safety – which of your
companies does not have a health & safety
culture?
43. Investing in a corporate anti-bribery culture –
like a corporate health & safety culture – is good
for business
“Accidents” will and do happen from time to
time – including “business accidents”.
Other people’s “mistakes” can cause serious
damage to your company – or to your business
partners, parent companies, etc.
Creating a corporate culture which does not
allow (as opposed to not permitting) “bribery”
– whether petty or major - is the key.
44. Should Romania have similar legislation?
Note the key aspect: it is not enough to
have “ticked the boxes”.
The object is to change the business
culture.
Does your business have a culture
which prevents bribery?
45. For further information…
…or for confidential advice on how to convince people to buy into the
business safety culture…please contact us!
• Bucharest Contacts:
• Neil McGregor, Boiana Berchi & Elena Abdulgani
• McGregor & Partners S.C.A.
Str. Emanoil Porumbaru no. 17, Sector 1, 011421 Bucharest, Romania
Telephone: +40 21 222 04 88
Fax: +40 21 312 16 46
• Sofia Contacts:
• Neil McGregor, Julian Spassov & Asya Vladimirova
• McGregor & Partners Law Firm
11, Christo Smirnensky Blvd, 6th Floor, 1164 Lozenetz,
Sofia, Bulgaria
• Telephone:+359 28 65 17 17
Fax: +359 28 65 18 18
www. mcgregorlegal.eu
46. Thank you for your attention,
BUT
... please remember that the information contained in this presentation is
provided for background information purposes only and was believed to be
correct at the time of writing.
It is not a substitute for taking specific legal advice before taking or
refraining from any action.
If in doubt, please call me on +40 722 368 076
