The British Are Coming!: Britain Changes Its Law on Foreign Bribery and Joins the International Fight Against Corruption

Abstract

SUMMARY INTRODUCTION 3 I. PASSING THE BRIBERY ACT AND CHANGING THE UNITED KINGDOM'S APPROACH TO ANTI-BRIBERY ENFORCEMENT 4 II. A STATUTORY COMPARISON OF THE BRIBERY ACT AND THE FCPA 7 A. The FCPA' s And- Bribery Provisions 8 1. The Provisions' Broad Reach 9 2. The Intent of the Payor 10 3. The Violative Act 11 4. The Recipient of the Bribe 11 5. The Bribe's Purpose 12 6. The Role of Third Parties 12 7. The Exception and Affirmative Defenses 12 a. The Facilitating Payments Exception 13 b. The Affirmative Defenses 14 B. Bribing Foreign Officials: A Comparison of the FCPA and the Bribery Act's Section 6 14 1. Section 6's Jurisdictional Reach 15 2. The Intent of the Payor (the Fault Element) 16 3. The Actus Reus (the Conduct Element) 17 4. The Recipient of the Bribe 18 5. The Bribe's Purpose 19 6. The Role of Third Parties 20 7. Exceptions and Affirmative Defenses 20 a. Facilitating Payments 20 b. Payments Expressly Permitted by Written Law 21 c. Promotional Expenses 21 C. Sections 1 and 2 of the Bribery Act: The General Bribery Offenses ........ 23 1. The Elements of the General Bribery Offenses 23 2. Relevant Function or Activity 25 3. The Improper Performance Test 26 4. Other Provisions Relevant to Corporate Liability for the Bribery Offenses 27 D. The Bribery Act's Section 7 and the FCPA 's Accounting Provisions ...... 28 1 . Section 7's Prohibition on Failing to Prevent Bribery 28 2. Implications of the Accounting Provisions and the Bribery Act's Adequate Procedures Defense 31 3. The FCPA's Accounting Provisions 32 4. The U.K. Companies Act 2006 35 E. Penalties 35 F. How the Bribery Act May Affect Corporate Compliance Programs . …