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THE UK BRIBERY ACT 2010 AND ACCOMPANYING GUIDANCE: BELATED IMPLEMENTATION OF THE OECD ANTI-BRIBERY CONVENTION

Published online by Cambridge University Press:  06 June 2012

Cecily Rose
Cecily Rose
Affiliation:
Ph.D. Candidate, University of Cambridge, LL.M. (Cantab), J.D. (Columbia), B.A. (Yale). Email: [email protected].
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Abstract

On 1 July 2011 the UK Bribery Act 2010 and accompanying guidance finally came into force, marking the end of years of controversy about how and when the United Kingdom would implement the OECD Anti-Bribery Convention. The United Kingdom's very delayed implementation of the Convention provoked an increasingly threatening response from the OECD Working Group on Bribery, and highlighted this body's lack of binding enforcement procedures. By contrast, the OECD's reliance on non-binding guidelines has proved successful in that the UK Guidance draws heavily upon the OECD's guidance on how corporations should prevent the bribery of foreign public officials.

Type
Shorter Articles
Information
International & Comparative Law Quarterly , Volume 61 , Issue 2 , April 2012 , pp. 485 - 499
Copyright
Copyright © British Institute of International and Comparative Law 2012

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References

1 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, adopted by the negotiating conference on 21 November 1997, entered into force on 15 February 1999.

2 Boyle, Alan, ‘Some Reflections on the Relationship of Treaties and Soft Law’ (1999) 48 ICLQ 901–2CrossRefGoogle Scholar.

3 See, eg Chinkin, Christine, ‘The Challenge of Soft Law: Development and Change in International Law’ (1989) 38 ICLQ 850CrossRefGoogle Scholar; Boyle (n 2); Weil, Prosper, ‘Towards Relative Normativity in International Law?’ (1983) 77 AJIL 413CrossRefGoogle Scholar.

4 Art 1.

5 Working Party on Export Credits and Credit Guarantees, ‘OECD Council Recommendation on Bribery and Officially Supported Export Credits’ TD/ECG(2006)24 (18 December 2006); ‘Recommendation of the Council on Tax Measures for Further Combating Bribery of Foreign Public Officials in International Business Transactions’ C(2009)64 (25 May 2009); ‘Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions’ (26 November 2009); OECD Council, Good Practice Guidance on Internal Controls, Ethics, and Compliance (18 February 2010).

6 Nicola Bonucci, ‘Article 12: Monitoring and Follow-up’ in Mark Pieth, Lucinda Low and Peter Cullen (eds), The OECD Convention on Bribery: A Commentary (CUP 2007).

7 See generally, Fabrizio Pagani, General Secretariat, Directorate for Legal Affairs, ‘Peer Review: A Tool for Co-operation and Change: An Analysis of an OECD Working Method’ SG/LEG(2002)1 (11 September 2002).

8 Steps taken to implement and enforce the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, United Kingdom (24 September 2010); Ministry of Justice, The Bribery Act 2010, Guidance about procedures which relevant commercial organizations can put into place to prevent persons associated with them from bribing (section 9 of the Bribery Act 2010), Forward [hereinafter UK Guidance].

9 R (on the application of Corner House Research and others) v Director of the Serious Fraud Office [2008] UKHL 60Google Scholar, 30 July 2008, para 11 [hereinafter House of Lords Corner House Judgment]. In April 2007, Corner House Research and the Campaign Against Arms Trade brought an application for judicial review of the SFO Director's decision to end its investigation of alleged bribery by BAE. The Queen's Bench Divisional Court held that the SFO Director's decision was unlawful, but the House of Lords reversed this ruling on appeal. The Queen on the application of (1) Corner House Research (2) Campaign Against Arms Trade v The Director of the Serious Fraud Office (Defendant) and BAE Systems Plc (Interested Party), Claim No CO/1567/2007, High Court of Justice, Queen's Bench Division, Administrative Court, 18 April 2007.

10 See generally, David Leigh and Rob Evans, ‘Nobbling the Police’ The Guardian <http://www.guardian.co.uk/baefiles/page/0,,2098531,00.html>; Lorello, David, Parlane, Rose and Irwin, Andy, ‘UK High Court Al-Yamamah Decision Signals Debate on Role of Prosecutorial Discretion in Anticorruption Investigations’ (June 2008) 5 International Government Contractor 6Google Scholar.

11 ‘United Kingdom: Phase 2bis: Report on the Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 1997 Recommendation on Combating Bribery in International Business Transactions’ (16 October 2008) [hereinafter UK Phase 2bis Report]; Directorate for Financial and Enterprise Affairs, ‘OECD Group demands rapid UK action to enact adequate anti-bribery laws’ (16 October 2008).

12 OECD Council, ‘Good Practice Guidance on Internal Controls, Ethics, and Compliance’.

13 ‘Revised Guidelines for Phase 2 Reviews’ 19. The other four countries are Japan (June 2006), Luxembourg (March 2008), Ireland (December 2008) and Turkey (June 2009).

14 See ‘United Kingdom: Phase 2: Report on the Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 1997 Recommendation on Combating Bribery in International Business Transactions’ (17 March 2005) paras 23–35 [hereinafter UK Phase 2 Report].

15 Paragraph 34 of the commentary indicates that Article 12 incorporates Article VIII of the 1997 Revised Recommendation of the Council on Combating Bribery in International Business Transactions, which sets forth the terms of reference for the Working Group.

16 Bonucci (n 6) 449.

17 Commentary para 34; Article VIII of the 1997 Revised Recommendation of the Council of Combating Bribery in International Business Transactions.

18 Mark Pieth, ‘Introduction’ in Mark Pieth, Lucinda Low and Peter Cullen (eds), The OECD Convention on Bribery: A Commentary (CUP 2007) 30.

19 See, eg OECD, ‘Anti-Bribery Convention: Phase 2 Monitoring Information Resources, Revised Guidelines for Phase 2 Reviews’ DAF/INV/BR/WD(2005)12/REV3 (27 February 2006).

20 Bonucci (n 6) 449.

21 ‘Country Monitoring of the OECD Anti-Bribery Convention’ <http://www.oecd.org/document/12/0,3746,en_2649_37447_35692940_1_1_1_37447,00.html>.

22 ‘United Kingdom: Review of Implementation of the Convention and 1997 Recommendation’ (December 1999) 1.

23 ibid 24.

24 ibid.

25 ibid.

26 Law Commission, Reforming Bribery (Law Com No 313, 19 November 2008) para 4.7; Hansard (HL), 27 November 2001, vol 629, col 152–3, by Lord Rooker; col 204–5, by Baroness Whitaker; col 265–6 by Lord Neil of Bladen; col 288 by Lord Goldsmith.

27 Law Commission (n 26) para 4.10.

28 House of Lords Corner House Judgment, paras 43–4.

29 ibid 38–42.

30 Law Commission (n 26) para 4.8.

31 ‘United Kingdom: Review of Implementation of the Convention and 1997 Recommendation: Phase 1bis Report’ (March 2003) 16.

32 ibid 17–18.

33 See generally, Explanatory Notes to UK Bribery Act 2010, paras 6–10; Home Office, ‘Raising Standards and Upholding Integrity: The Prevention of Corruption’ (June 2000); Law Commission Report Legislating the Criminal Code: Corruption (No 248 March 1998).

34 Joint Committee on the Draft Corruption Bill Session 2002–03 Report and Evidence HL 157, HC 705.

35 UK Phase 2 Report, para 183.

36 Government Reply to the Report from the Joint Committee on the Draft Corruption Bill Session 2002–03 HL 157, HC 705, Cm 6068; Bribery: Reform of the Prevention of Corruption Acts and SFO powers in cases of bribery of foreign officials (2005).

37 UK Phase 2 Report.

38 ibid para 15.

39 ibid para 248.

40 ibid paras 16, 249.

41 ‘OECD to conduct a further examination of UK efforts against bribery’ (14 March 2007) <http://www.oecd.org/document/12/0,3746,en_33873108_33873870_38251148_1_1_1_1,00.html>.

42 OECD Press Conference (14 March 2007) <http://www.pieth.ch/nc/media/video_clips/show/oecd-press-conference/>.

43 UK Phase 2bis Report 12.

44 ibid 71.

45 See, by contrast, ‘Japan: Phase 2bis: Report on the Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 1997 Recommendation on Combating Bribery in International Business Transactions’ (15 June 2006) para 62 (the Working Group considered Japan's failure to act on some of the Phase 2 Recommendations to be ‘regrettable’); ‘Luxembourg: Phase 2bis: Report on the Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 1997 Recommendation on Combating Bribery in International Business Transactions’ (20 March 2008) paras 81–3 (the Working Group was ‘particularly concerned’ and ‘seriously concerned’); ‘Ireland: Phase 2bis: Report on the Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 1997 Recommendation on Combating Bribery in International Business Transactions’ (11 December 2008) 21, 24 (the Working Group was ‘deeply concerned’); ‘Turkey: Phase 2bis: Report on the Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 1997 Recommendation on Combating Bribery in International Business Transactions’ (18 June 2009) 14–15 (the lead examiners were ‘concerned’).

46 Law Commission, Reforming Bribery (Consultation Paper No 185, October 2007); Law Commission (n 26).

47 Kelly Hagedorn, ‘The Bribery Bill's Wash Up’, FCPA Blog (15 April 2010) <http://www.fcpablog.com/blog/2010/4/15/the-bribery-bills-wash-up.html>.

48 Bowers, Simon, ‘Serious Fraud Office vows to pursue corrupt foreign companies’ The Guardian (25 March 2011)Google Scholar.

49 Consultation on guidance about commercial organizations preventing bribery (section 9 of the Bribery Act 2010), Consultation Paper CP11/10, para 2; Ministry of Justice, Bribery Act Implementation (20 July 2010) <http://www.justice.gov.uk/news/newsrelease200710a.htm>.

50 Ministry of Justice (n 8).

51 Ministry of Justice, Bribery Act 2010 <http://www.justice.gov.uk/publications/bribery-act.htm>.

52 OECD Press Release, UK: Chair of OECD Working Group on Bribery concerned over delay of new Bribery Act, 1 February 2011.

53 Leigh, David, ‘British firms face bribery blacklist, warns corruption watchdog’ (31 January 2011) The GuardianGoogle Scholar.

54 Hannon, Paul, ‘2nd Update: OECD: Delay in UK Bribery Law “Very Disappointing” ’ (1 February 2011) The Wall Street JournalGoogle Scholar.

55 Boxell, James and Rigby, Elizabeth, ‘Exports warning as bribery law is delayed’ (31 January 2011) Financial TimesGoogle Scholar.

56 See (n 54).

57 ibid.

58 United States v BAE Systems plc, Plea Agreement, 1 March 2010.

59 The World Bank, Sanctions Committee, Report Concerning the Debarment Process of the World Bank <http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/PROCUREMENT/0,,contentMDK:50002288~pagePK:84271~piPK:84287~theSitePK:84266,00.html>.

60 Agreement for Mutual Enforcement of Debarment Decisions, 9 April 2010.

61 FATF, High-Risk and Non-Cooperative Jurisdictions, <http://www.fatf-gafi.org/pages/0,3417,en_32250379_32236992_1_1_1_1_1,00.html>; FATF, About the Non-Cooperative Countries and Territories (NCCT) Initiative <http://www.fatf-gafi.org/document/51/0,3746,en_32250379_32236992_33916403_1_1_1_1,00.html>; FATF, Non-Cooperative Countries and Territories: Timeline <http://www.fatf-gafi.org/document/54/0,3746,en_32250379_32236992_33919542_1_1_1_1,00.html>.

62 FATF, General FAQ <http://www.fatf-gafi.org/document/26/0,3746,en_32250379_32236836_34312026_1_1_1_1,00.html>.

63 ibid.

64 See generally, Pagani (n 7).

65 Section 7(1).

66 Section 7(2).

67 Section 9(1).

68 UK Guidance, 20–31.

69 Transparency International UK, Government Guidance ‘deplorable’ and will weaken Bribery Act (30 March 2011)Google Scholar <http://www.transparency.org.uk/all-news-releases/167-government-guidance-deplorable-and-will-weaken-bribery-act>.

70 UK Guidance, para 11.

71 ibid.

72 ibid 32–43.

73 ibid 21–2.

74 ibid para 1.7.

75 ibid para 2.4.

76 ibid 25–6.

77 ibid paras 3.3, 3.5.

78 ibid 27–8.

79 ibid 29–30.

80 ibid 31.

81 ibid para 3.5.

82 Ministry of Justice, Consultation on guidance about commercial organisations preventing bribery (section 9 of the Bribery Act 2010), Consultation Paper CP11/10, para 4.

83 Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions, Annex I.

84 Ibid.

85 ‘United Kingdom: Phase 1ter: Report on the Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 2009 Revised Recommendation on Combating Bribery in International Business Transactions’ (16 December 2010) para 80.

86 Westbrook, Amy, Enthusiastic Enforcement, Informal Legislation: The Unruly Expansion of the Foreign Corrupt Practices Act (2011) 45 Georgia L Rev 489Google Scholar.

87 Non-Prosecution Agreement between the United States Department of Justice and Nobel Corporation, 4 November 2010, Attachment B; US v Panalpina World Transport (Holding) Ltd., 10-CR-769, Deferred Prosecution Agreement, U.S. District Court for the Southern District of Texas, Houston Division, 4 November 2010, Attachment C; US v Pride International, Inc., 10-CR-766, Deferred Prosecution Agreement, U.S. District Court for the Southern District of Texas, Houston Division, 4 November 2010, Attachment C; US v Shell Nigeria Exploration and Production Company Ltd., 10-CR-767, Deferred Prosecution Agreement, U.S. District Court for the Southern District of Texas, Houston Division, 4 November 2010, Attachment C; US v Tidewater Marine International Inc., 10-CR-770, Deferred Prosecution Agreement, U.S. District Court for the Southern District of Texas, Houston Division, 4 November 2010, Attachment C; US v. Transocean, 10-CR-768, Deferred Prosecution Agreement, U.S. District Court for the Southern District of Texas, Houston Division, 4 November 2010, Attachment C; Non-prosecution agreement between the United States Department of Justice, Criminal Division, Fraud Section, the U.S. Attorney's Office for the Northern District of California, and RAE Systems Inc., 10 December 2010, Attachment B; US v. Maxwell Technologies, Inc., 11-CR-329, Deferred Prosecution Agreement, United States District Court for the Southern District of California, 31 January 2011, Attachment C.