Global menu

Our global pages

Close

The impact of the UK Bribery Act on international anti-bribery laws

  • Northern Ireland

    02-07-2021

    The UK Bribery Act (“UKBA”), the provisions of which extend to Northern Ireland, was introduced in direct response to the Organisation for Economic Co-Operation and Development’s (“OECD”) sharp criticism in 2008 of the UK’s failure to bring its anti-bribery laws in line with its international obligations under the OECD’s Anti-Bribery Convention.

    When the UKBA came into force on 1 July 2011, it became one of the two strongest anti-bribery laws globally along with the USA’s Foreign Corrupt Practices Act (“FCPA”) which was introduced in 1977. The UKBA not only met that criticism but positioned the UK alongside the US as the countries with the most formidable anti-bribery legislation in the world and the most active enforcement.

    Since extra-territorial scope of the UKBA catches foreign companies for conduct outside of the UK as long as a part of their business operates in the UK, for example they have a subsidiary or branch office in the UK, it meant that the ramifications of the introduction of the UKBA was felt across the globe.

    In this briefing we have looked at the impact that the introduction of the UKBA has had across the globe in terms of the introduction of similar legislation in other countries or invigorated law enforcement.

    Brazil

    In 2014, the Brazilian government introduced The Clean Company Act in 2014, inspired by both the UKBA and the US FCPA, which included offences of bribery of local officials and foreign officials and strict liability for companies. Unlike the UKBA, Brazil did not introduce bribery in the private sector to its legislation. The new legislation also included potential corporate credit for adequate anti-bribery compliance programmes, self-reporting and self-disclosure as well as “leniency agreements” for corporate defendants which are similar to the Deferred Prosecution Agreements (“DPAs”) available in the UK and USA.

    France

    In 2016 France introduced stringent anti-bribery legislation Loi Sapin II, which went one step further than the UKBA, by setting out a positive obligation on relevant companies to implement an anti-bribery compliance programme. The UKBA encouraged companies to implement anti-bribery programmes by including a full defence of “adequate procedures” to the corporate offence of failure to prevent bribery. Loi Sapin II created a requirement for relevant companies and their directors to implement an anti-bribery compliance programme or face administrative fines of up to €200,000 for individual directors or up to €1 million for the company, even where there is no suspicion of bribery having taken place.

    Loi Sapin II also established an anti-corruption agency “Agence Française Anticorruption” which has become a recognised international player as a result of the 2020 global enforcement settlement between Airbus the Agence Française Anticorruption and the UK and US authorities.

    Loi Sapin II also introduced “Judicial Conventions of Public Interest” which are broadly similar to the DPAs available in the UK and USA and have been proven successful and used on many occasions in France since their introduction.

    UAE

    Following the successful prosecution by the UK authorities in 2016 of UK company Sweet Group plc for failing to prevent bribery in the UAE, the UAE took steps to strengthen its own anti-bribery laws by amending their criminal code by adding bribery between private persons, expanding bribery to include foreign officials along with a definition of ‘foreign official’ and by also adding an extra-territorial effect to the amendments to the code. All of the amendments largely mirrored the UKBA.

    Canada

    Prior to the introduction of the UKBA, Canada had been aligned with the US by including an exclusion for facilitation payments or ‘grease payments’ in Canada’s Corruption of Foreign Public Officials Act (“CFPOA”). In October 2017, Canada followed the UKBA’s approach by removing the facilitation payment exclusion to create absolute prohibition on facilitation payments.

    Ireland

    In 2018 Ireland introduced the Criminal Justice (Corruption Offences) Act 2018 which consolidated and modernised Ireland’s anticorruption legislation that dated back to 1889. It also introduced private bribery and a corporate criminal liability where a company’s employees or associated third party commits corrupt actions for the benefit of the company, which is broadly similar to the UKBA’s corporate offence and which was also accompanied by a statutory defence of having “all reasonable steps and exercised all due diligence to avoid the commission of the offence.”

    Australia

    Since 2019 Australia has been working towards implementing a new Bill, the Crime Legislation Amendment (Combatting Corporate Crime) Bill 2019 to strengthen its anti-bribery legislation similarly to the UKBA. The key proposed changes in the Bill include the introduction of a corporate offence of failure to prevent foreign bribery, extended definition of bribery of a foreign public official and the introduction of DPAs. The Bill also includes a proposed defence of ‘adequate procedures’ to the corporate ‘failure to prevent offence’.

    The Bill has been making its way slowly through Australia’s parliament and is expected to be passed later this year. However even after the Bill is passed, two key differences will remain between the Australian and UK anti-bribery laws as the Australian legislation does include any offence for private bribery, and the existing Australian legislation includes an exclusion for facilitation payments. In 2011 the Australian Government did outline a proposal to remove the facilitation payments exclusion so we may see the exclusion disappear in the coming years.

    Germany

    Currently direct criminal sanctions against a company are not included in German law, however following the introduction of the UKBA the introduction of a "Corporate Liability Act" (“Verbandssanktionengesetz”) has been discussed in Germany and a corresponding draft bill has been enacted by the Federal Government and is awaiting adoption by the German Federal Parliament.

    Due to the extraterritorial application of the UKBA, over recent years many German companies (even those with a rather subordinate connection to the UK) have implemented enhanced anti-bribery and corruption compliance programmes which aim to meet the standards set out in the UK government’s published UKBA guidance for ‘adequate procedures’.

    Conclusion

    Until the introduction of the UKBA the US was the outlier in terms of global anti-bribery enforcement. When the UK joined the US in the fight against international bribery with the introduction of the UKBA it had a snowball effect with many other countries following suit and some such as France have even gone further in terms of the obligations placed upon companies.

    The extraterritorial effect of the UKBA along with the ‘adequate procedures’ defence also led to a sea-change in global corporate culture towards effective anti-bribery and corruption prevention and increased awareness of bribery risks and typologies.

    If you would like to know more about anti-bribery and corruption prevention or bribery risks and typologies, the specialists in our Corporate Crime & Investigations team would be happy to help you. Our Global anti-bribery and corruption guide also provides a snapshot of the key elements of the anti-bribery legislation in various countries across the globe.

    For more information, please contact

    This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

    < Go back