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Introducing the Bribery Act 2010 - Nick Benwell
Introducing the Bribery Act 2010 - Nick Benwell
Introducing the Bribery Act 2010 - Nick Benwell
Introducing the Bribery Act 2010 - Nick Benwell
Introducing the Bribery Act 2010 - Nick Benwell
Introducing the Bribery Act 2010 - Nick Benwell
Introducing the Bribery Act 2010 - Nick Benwell
Introducing the Bribery Act 2010 - Nick Benwell
Introducing the Bribery Act 2010 - Nick Benwell
Introducing the Bribery Act 2010 - Nick Benwell
Introducing the Bribery Act 2010 - Nick Benwell
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Introducing the Bribery Act 2010 - Nick Benwell

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Nick Benwell of Simmons & Simmons discussing the Bribery Act 2010 and its implicatio

Nick Benwell of Simmons & Simmons discussing the Bribery Act 2010 and its implicatio

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  • 1. An Introduction to the Bribery Act 2010 Nick Benwell 20 January 2011© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.
  • 2. General offences  Bribery: offering/giving/receiving an advantage, intending to induce or reward improper performance; or knowing or believing that acceptance would in itself be improper  “Improper” performance means performance in breach of expectation of good faith/impartiality or i b f ith/i ti lit in breach of t t h f trust  Jurisdictional reach – Activity i the A ti it in th UK – British citizens – Individuals ordinarily UK resident y anywhere in the world – Corporate bodies incorporated in the UK© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.2 / Doc ID: L_LIVE_EMEA1:9584833v1
  • 3. The Foreign Public Official offence  FPO = anyone who: – holds a legislative, administrative or j g , judicial p position – exercises a public function (inc for any public agency or enterprise) – is an official of a public international organisation  Payer must intend: – to influence FPO – to obtain or retain business or an advantage  Payer must offer, promise or give an advantage to FPO or someone at FPO’s request/assent  Note: no requirement of impropriety  Defence – if written local law permits or requires FPO to be influenced by the advantage : p q y g usually it doesn’t!© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.3 / Doc ID: L_LIVE_EMEA1:9584833v1
  • 4. The corporate offence Failure to prevent corruption  Failure by a company (‘C’) to prevent bribery of a third party (‘X’) by another company or individual (‘A’)  Where A is performing services for C  And A intentionally bribes X with the intention of obtaining business for C  A may therefore be – Employee – Director or officer – Agent ge t – Trustee – Subsidiary or affiliate – Joint venture (incorporated or unincorporated) – Supplier – Contractor  Jurisdiction: UK incorporated companies and foreign companies carrying on a business in UK The only defence is to show adequate anti-bribery procedures in place© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.4 / Doc ID: L_LIVE_EMEA1:9584833v1
  • 5. Draft Government Guidance The six principles  Risk assessment  Top level commitment  Due diligence  Clear, practical and accessible policies and procedures  Effective implementation  Monitoring and review© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.5 / Doc ID: L_LIVE_EMEA1:9584833v1
  • 6. Penalties  Up to 10 years’ imprisonment  Unlimited fines (individuals and corporate)  Debarment from Government contracting within the EU (no time limit)  Note: international cooperation/extradition© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.6 / Doc ID: L_LIVE_EMEA1:9584833v1
  • 7. Timetable  Act received Royal Assent – 8 April 2010  Adequate procedures: consultation on draft guidance from 14 September until 8 November 2010  Final guidance to be p g published in late January 2011 y  Attorney General’s guidance to prosecutors  Act comes into force April 2011  Plea deals and the ECA© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.7 / Doc ID: L_LIVE_EMEA1:9584833v1
  • 8. Communications  Internal – Tone from the top – compliance must come first p p – Policies and procedures – ensuring awareness – Training – Hotlines – Crisis management© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.8 / Doc ID: L_LIVE_EMEA1:9584833v1
  • 9. Communications  External – High risk/high p g g profile – Risk of serious brand damage – Strong press interest, and investigative journalism – Role of disgruntled employees or competitors  Crisis management – Coordination and control – Careful messaging (avoid the early inconsistent message) – Document risk  The recovery phase – Speed of recovery driven by how well company and its leaders are seen to have managed the crisis© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.9 / Doc ID: L_LIVE_EMEA1:9584833v1
  • 10. Nick Benwell T: +44 20 7825 4236 E: nick.benwell@simmons-simmons.com Nick is Head of Simmons & Simmons’ international Crime, Fraud & Investigations Group. He advises on criminal investigations, bribery and corruption issues and fraud for clients in various industry sectors including financial institutions. He is a member of the CBI’s working committee on the Bribery Act and Vice Chair of the IBA Anti- Corruption Committee. Nick is recommended as a leading practitioner in the “Who’s Who of Business Crime Lawyers”. He is described by Chambers Guide and Legal 500 as: “excellent at identifying problems, then using his outstanding judgement to find appropriate solutions”; “sharp as a razor and a savvy tactician”; and "absolutely first class." Recent experience includes: – Advising on several high profile SFO corruption investigations. – Advising on a corruption investigation including possible tax evasion and money laundering issues. The case involved payments th i l d t through a number of j i di ti h b f jurisdictions, i l di th US and th need t work with l including the US, d the d to k ith local C l Counsel i l in Asia (FTSE 100 client). – Advising an investment bank on an employee fraud which involved obtaining search and freezing orders, tracing assets and liaising with criminal and regulatory authorities in a number of jurisdictions. Simmons & Simmons: Ranked: Tier 1: Criminal: Corporate Chambers 2010© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.10 / Doc ID: L_LIVE_EMEA1:9584833v1
  • 11. simmons-simmons.com elexica.com© Simmons & Simmons LLP 2010. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated partnerships and other entities.11 / Doc ID: L_LIVE_EMEA1:9584833v1

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