The Bribery Act – getting guidance

The long-awaited Guidance on the UK Bribery Act was finally published on 30 March 2011, which means that the Act comes into effect on 1 July 2011. Companies waiting on the Guidance before taking measures to ensure they will be compliant with the legislation now face a potentially very busy period, not least because the document offers neither a roadmap nor checklist for businesses to follow, but remains focused on guiding principles; it also carries no legal force. Businesses will be responsible for interpreting the principles to design, integrate and monitor an anti-corruption compliance programme that is fit for purpose. Qualifications aside, the Guidance provides helpful clarity on some important points, says Daniel Barton of Alvarez & Marsal.

Daniel Barton (+44 (0) 207 715 5200, dbarton@alvarezandmarsal.com) is a Senior Director, Alvarez & Marsal Dispute Analysis and Forensic Services LLP

Scope of the Act

There has been much debate about the scope of the Bribery Act, what constitutes carrying on a business in the UK and therefore which businesses need to comply. The Guidance provides some help in this regard as it states that a “demonstrable business presence” is called for and that merely having a UK subsidiary or UK listing would not necessarily meet the criterion. However, this has yet to be tested in the UK courts. In our view, the majority of businesses should not find it difficult to determine if they have a UK operation that meets this definition. For example, a UK subsidiary with employees located in the UK would clearly be viewed as having a presence in the UK compared to a UK shell company, and it would be difficult for a company to argue that it did not carry on a business in the UK if its website or marketing material stated otherwise.