美国对外腐败实践法（“FCPA”）在全球众所周知。美国当局积极起诉，它导致犯罪判决和数十亿美元的罚款和处罚。
Now it’s the UK’s turn. Last year, the UK joined the lucrative anti-bribery enforcement playing field when it passed the Bribery Act 2010 which takes effect today, July 1, 2011. It remains to be seen whether UK authorities will take an equally aggressive stance with enforcement, but given the breadth of the Bribery Act, the corporate community should be ready for the worst. The FCPA compliance programs in the US do not offer protection from Bribery Act violations.
The FCPA and the Bribery Act vary in scope, jurisdiction, knowledge standards and compliance program directives. While the FCPA extends only to corrupt payments to public officials, the Bribery Act prevents the offer of an advantage to any person if it would induce or reward them to act improperly. As most US anti-corruption policies are limited to prohibiting dealings with public officials, these guidelines must be widened to include the private sector. The Bribery Act, unlike the FCPA, also includes penalties for those who receive the bribe, placing non-UK companies at risk for making and accepting bribes. In the US, commercial bribery legislation has historically been the province of the states. Compliance programs failing to address corporate officers, employees and agents accepting bribes will not satisfy the Bribery Act requirements.
The jurisdictional reach of the Bribery Act is also far broader than that of the FCPA. The FCPA applies to US and foreign companies listed on a US stock exchange and their officers, directors, employees and agents. The Bribery Act broadens that territorial reach to include acts committed by British residents, nationals and foreign companies that carry on business or part of a business in the UK regardless of where the offense was committed. So, for example, a US company that does business in the UK and commits a bribery offense in Nigeria may be subject to penalties under the Bribery Act.
不幸的是，对于那些试图解释立法的非英国公司来说，贿赂法没有定义英国的“做生意”。Although the guidance from the UK Ministry of Justice (MoJ) has stated that a parent company is not doing business in the UK based solely on the presence of an independent acting UK subsidiary, the UK’s Serious Fraud Office (SFO) has stated it intends to interpret the Act broadly. This conflicting guidance has placed US companies trying to examine their business dealings and supply chains to determine whether the Act may apply at an extreme disadvantage.
US companies should take note of the Bribery Act’s silence as to whether there is successor liability for acquiring companies. Under the FCPA, an acquiring company can be liable for an acquiree’s pre-transaction conduct, and there are many examples of successor liability settlements with the Department of Justice. Clearly, it would be prudent to assume the UK will enforce consistently and non-UK acquirers should supplement M&A due diligence checklists to include analysis of Bribery Act compliance.
贿赂法案已追求关注其使其成为企业犯罪，无法防止贿赂。根据该法案，如果与其相关的人贿赂有意在业务期间贿赂另一个人的人贿赂另一个人，一家公司将承担刑事责任，并且旨在防止贿赂的适当程序。这种严格的企业未能防止贿赂的责任罪行没有FCPA等价物。相反，FCPA要求显示违规的知识。
One of the few defenses under the FCPA is an exemption for facilitation or ‘grease’ payments made to expedite a routine governmental action. There is no such exception under the Bribery Act and the MoJ’s guidance draws a distinction with the FCPA, describing this exemption as artificial and perpetuating the culture of bribery. This discrepancy between the FCPA and the Bribery Act should be promptly communicated to officers, employees and agents.
贿赂法案可以在一个相关人员贿赂之后向公司担任公司的责任，该术语被定义为潜在的任何第三方，包括为公司或代表公司执行服务。贿赂法案确实提供了全面的防御，公司可以证明它有足够的程序来防止贿赂。指导明确表示没有普遍的方法，程序的充分性取决于公司面临的风险以及业务的性质，大小和复杂性。根据贿赂法案的严格责任标准，有效的合规计划是公司唯一的盗兵免费卡。
Ultimately, the UK courts will be the final arbiter of the ambiguity-laden Bribery Act. In the interim, US companies will be watching to see whether the SFO uses its considerable prosecutorial discretion to assuage the anxiety of companies trying to stay competitive in the UK market or flexes its muscle to surpass the vigorous enforcement tactics employed under the FCPA.
Michael F. Perlis is a partner with Stroock & Stroock & Lavan in Los Angeles and a former assistant director of the Division Enforcement of the Securities and Exchange Commission. He assisted in the original drafting of the Federal Corrupt Practices Act. Wrenn E. Chais is Of Counsel at Stroock & Stroock & Lavan in Los Angeles, where she practices securities-related litigation.