Friday, June 3, 2011
Why is No One Talking About the UK Bribery Act?
There is a strange silence in the world of webinars, seminars and the blogosphere – there are no more predictions of Armageddon -- the world is coming to an end with the new UK Bribery Act. Why? Where is everyone?
There is no way the Ministry of Justice Guidance somehow clarified the law so that companies know what to do – in fact, my favorite part of the Guidance was when they brilliantly observed that an issue would be "decided by the courts”! Imagine that: a court deciding what a law means. What a novel concept.
Over and over we heard about the differences between the FCPA and the UK Bribery Act – no facilitation payments and it covers commercial bribery. But perhaps the biggest area of concern was the strict liability corporate offense with a defense of “adequate procedures.” But when we started to hear what is “adequate” – the definition resembled the US Sentencing Guidelines compliance requirements and OECD recommendations.
Not to be cynical but what is really going to happen on July 1, 2011? As I have said from the beginning, the SFO is likely to piggy-back and continue to build a joint enforcement strategy with US law enforcement and prosecutors. The infrastructure already exists through sharing arrangements, and through numerous joint prosecutions – e.g. BAE and others. This is likely to continue.
The SFO recently disclosed that it is focusing on medical device companies and their activities in global markets. That is not surprising. US law enforcement is already there and information is probably being shared.
The key to predicting future government enforcement actions is looking at the resources dedicated to such assignments. It is here that perhaps we can glean the immediate future – the SFO has had to fight for its bureaucratic life, key personnel have left or are rumored to be leaving and there is little indication that the SFO will be flush with money and/or personnel to launch a new aggressive strategy.
All this is not to say that companies should ignore the UK Bribery Act. The risk is real and you can bet if the SFO gets an opportunity to bring a case to demonstrate its muscle, they will do so.
For now, I miss the steady drumbeat of warnings and dire predictions. Where are Howard Sklar, Richard Cassin and Tom Fox when we need them!!!!