LDM Global seminar: The Bribery Act – an International Perspective

I moderated a panel last week at the invitation of LDM Global with the title The UK Bribery Act – an international perspective: how the act will apply to foreign organisations, operations and activities.

The panelists were Rose Parlane, senior associate at McGuireWoods, and Don Macfarlane, Head of Global Operations and General Counsel for LDM Global. Rose is a member of McGuireWoods’ anti-corruption group, much involved recently in briefing her clients on the Bribery Act, on how best to prepare for it and why it is important to do so. Don’s career has focused on international law, cross-border litigation, cost management and proportionality, and has worked as an in-house lawyer at BP as well as at large law firms.

I opened by drawing attention to the divisions of opinion provoked by the Bribery Act: some said it hampered competition whilst others claimed it was too weak for its purpose; the required degree of connection with the UK has been condemned as imprecise and as unfair to truly UK companies; the act is too broad or too narrow, too specific or too vague, depending on who is speaking. Given the very wide range of companies and activities, the spread of opinion perhaps indicated that we had got it about right, although it would have been nice if the government, the SFO and the courts were singing from the same hymn sheet as to enforcement. There was no point, however, in arguing with what the legislation said – we are where we are and must focus on what to do about it.

Rose Parlane gave us a brief overview of the act and its key provisions, and took us through the Guidance. The wording of the act has not been watered down and it is to the legislation that the courts will look first. The froth of comment about facilitation payments and entertainment had obscured the need for a careful risk-based approach which designed an “adequate” compliance program appropriate to the size of the company, its risk profile and its existing processes and systems. It was not necessarily a bad thing that companies needed to know about the people and entities with which they dealt.

Joint ventures, she said, remained a source of exposure. The trickle-down effect of compliance requirements imposed by contracting parties would, in many cases, be a more serious pressure than any realistic fear of prosecution. It was likely that we would see civil actions based on compliance failures.

Don Macfarlane added practical examples based on his own experience in the broader compliance field. Much of the action, he thought, would derive from Section 14 by which the “consent or connivance” of any senior officer of a company, or a person purporting to act in such a capacity, put them at risk of being “guilty of the offence and liable to be proceeded against and punished accordingly”.

LDM Global gets involved both pre-emptively and when problems arise via one of its seven international offices. An allegation is made or a prosecution threatened: how do you collect information about the alleged activities, what do you do with it and how do you ensure that the problem does not arise again?

Some lively discussion arose along the way. Amongst my ambitions when moderating a panel is to bring it to a close on time and this was one where I had to interrupt the flow as 10 o’clock struck.

What the IoD Hub lacks in history (compared with the Middle Temple where I had spoken the previous day) it makes up for in providing a smart and modern venue for sessions of this kind. We filled the room, incited some contrary views, and won some appreciative comments. My thanks to LDM Global for organising it and for inviting me to moderate it.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
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