1. Page 1 of 14
The Inadequacy of Being "Adequate"
Questioning the Validity of the UK Bribery Act's
Adequate Procedures Defense
Corruption is arguably as old as politics itself. Ancient stories of corruption abound from China1
to Greece and India2
to Rome and even further back then records have been kept. Yet, over the past
four decades significant strides have been made in the battle over corruption. Since the late 1970's
with the establishment of Transparency International and the U.S. government's passage of the
Foreign Corrupt Practices Act, the battle to fight corruption has taken on a new concerted
transnational effort. Where once corruption was seen as a local custom and a way of doing business, it
has now become an issue of international importance and is seen as a significant hindrance to
economic development. Governments the world over have taken on the project of stamping out
corruption and eliminating the vestiges of this ancient practice with one recent and highly significant
development in this area being the passage of the U.K. Bribery Act.
When it was passed in 2010, the UK Bribery Act was seen as the most robust action taken at the
national level against corruption since the passage of the US FCPA 1977. The act enshrined certain
positions espoused by both United Nations Convention Against Corruption (UNCAC) and the OECD
Convention on Combating Bribery of Foreign Public Officials in International Business Transactions,
in that it extended traditional corruption laws to include international corruption, business-to-business
bribery and even eliminated the facilitation payments exception. Additionally, the act has praised for
its inclusion of provisions holding corporations strictly liable for bribes paid by agents acting on the
corporation's behalf. While all of these are clearly steps forward in the laudable fight against
corruption on both the domestic and international fronts, in their haste to expand the project certain
portions of the Bribery Act may have run afoul of basic principals of statutory construction and may
jeopardize the Bribery Act's effectiveness as an exercise of legislative power.
This essay will provide a discussion of certain provisions of the Bribery Act and specifically
analyze the "adequate procedures" defense and call into question the validity of this defense and ask
to what extent failure to provide for a specific standard of conduct or define with any clarity what
actions provide a defense against the imposition of liability on a corporation undermines not only the
defense itself but may also undermine the imposition of liability in the first instance. Analysis of the
Bribery Act will also address the issue of what standard (reasonableness, willful failure to reduce a
perceived risk, etc.) the defense aims to create and whether it is advisable or even permissible to allow
such a defense in the context of creating a strict liability offense. This essay will also review the use
1
Xinhua News Agency November 20, 2006, Unearthed Relics Reveal Corruption 2800 Years Ago
2
Jitendra Narayan, Corruption in Administration in Ancient India, Indian Journal of Political Science, Vol. 66, No. 3 (July-
Sept., 2005), pp. 559-574

2. Page 2 of 14
of this standard as a means for prosecuting corporations for violations of other laws and whether
importing those standards into the Bribery Act without proper delineation of the parameters of what
constitutes "adequacy" might undermine the project as a whole. Additional consideration will be
given to the attempts by private firms and organizations to help define what is considered "adequate"
and question whether an approach to statutory construction that envisions standard setting by private
organizations without enlisting their direct support is appropriate given foundational notions of
personal liberty and state regulation of individual behavior through criminal enactment. Finally,
suggestions as to how the project might achieve the ends of enlisting the support and leadership and
buy in from BoD's and senior management through imposition of obligations by other means, similar
to the internal controls approach adopted under financial disclosure regulatory approaches will be set
forward.
The Anti-Corruption Project, A Short History
In 1977, in the wake of the Nixon administration and the significant levels of government
corruption revealed during investigations of the Watergate affair, the U.S. Congress held numerous
hearings regarding both domestic and international corruption. What arose out of this intense work on
government reform was one of the first, if not the first, laws enacted with the intention of combatting
bribery and corruption on an international level, the Foreign Corrupt Practices Act. When passed, this
legislation was considered a watershed moment in that it established bribery of foreign public officials
as criminal behavior and provided U.S. government agencies, namely the Securities and Exchange
Commission and the Federal Trade Commission with the tools go-after corrupt individuals and
companies.
This act as originally passed was both breathtaking in its reach, yet narrow in its application.3
For
the first time, it outlawed (i.e., criminalized) the outright bribery of foreign officials by companies and
their actors. It also enlisted the novel idea of taking a disclosure approach as to a broad category of
payments by both domestic and non-U.S. incorporated entities as long as they were listed on a U.S.
stock exchange and thereby subject to Securities and Exchange Commission ("SEC") regulation. The
FCPA also provided for the for an exceptionally broad jurisdiction by criminalizing the use of the
mails or any means or instrumentality of interstate commerce in furthering the corruption. The broad
reach of this legislation was not without its critics and decried by the U.S. business community as an
anti-competitive impediment to U.S. businesses abroad. Yet, the passage of this law set the stage and
served as a base for the development and expansion of an anti-corruption project that would have
international reach and eventually impact the lives of millions.
3
M. Koehler, Symposium: The FCPA at Thirty-Fiveand its Impact on Global Business: TheStory of the Foreign Corrupt
Practices Act, 73 Ohio St. L.J. 929, 931.

3. Page 3 of 14
Following on the relative success of the U.S. enforcement of the FCPA in high profile cases and
with a push from some in the international community, the OECD took up the issue of combating
international corruption in the 1990's. After significant lobbying by high profile members of the, then,
newly established international anti-corruption NGO, Transparency International, the OECD in 1994
formally added anti-corruption to its agenda and called for the criminalization of bribery in the
international context. 4
The project eventually resulted in the adoption of the Convention on
Combating Bribery of Foreign Public Officials in International Business Transactions in 1997. This
convention was the first international treaty to focus on the "supply side" by calling on states to
criminalize the bribing of a foreign official.5
In addition, this treaty provided that where companies
(i.e., legal persons) are not covered under their domestic anti-bribery regimes, states parties to the
treaty must "ensure that [companies be] subject to effective, proportionate and dissuasive non-
criminal sanctions, including monetary sanctions."6
Finally, the treaty required participating states to
institute asset recovery mechanisms and also submit to an implementation review program. This
treaty was eventually signed and ratified by forty countries all of which have also concluded
implementing legislation, with Columbia being the latest to do so in 2012.7
While the treaty was a significant step in the advancement of the anti-corruption project
especially in the European context, certain aspects of bribery were not addressed by the convention.
The convention did not cover facilitation payments, which are payments to progress government
actions that the government must already take often referred to as "grease payments". It also did not
address corporate-to-corporate (i.e., private corruption). Finally, while the treaty did call on states to
utilize sanctions against companies that bribe, these sanctions were only civil and non-criminal. Yet,
despite these limitations the treaty for the first time created an much needed international framework
for nations to cooperate across boarders in fighting transnational bribery.
In response to ratification of the OECD Convention and in recognition of its obligations
thereunder, the U.S. updated its domestic anti-bribery legislation, the FCPA, in 1998 with the passage
of the International Anti-Bribery and Fair Competition Act of 19988
thereby expanding the already
broad reach of the FCPA. These revisions included expanding prohibited conduct to include merely
"influencing" 9
a foreign official or the "securing of any improper advantage"10
. The updated
legislation also expanded the scope of covered persons to include officials of international
organizations, such as United Nations officials, members of the International Olympic Committee and
4
At http://www.transparency.org/whoweare/history
5
At http://www.oecd.org/corruption/oecdantibriberyconvention.htm; See also, OECD Convention, Art. 1 cl. 1.
6
Ibid. , Art. 3, cl. 2.
7
At http://www.oecd.org/daf/anti-bribery/antibriberyconventionratification.pdf
8
Pub. L. No. 105-366, 112 Stat 3302 (codified as amended at 15 U.S.C. § 78) (1998).
9
Ibid. at § 2(a)(1), amending, TheSecurities Exchange Act of 1934, § 30A(a) (codified as amended at 15 U.S.C. 78dd-1(a))
(1998).
10
Ibid.

4. Page 4 of 14
other organizations of international stature.11
New provisions also solidified the extraterritorial
application of U.S. anti-bribery legislation by providing for "alternative jurisdiction" over actions
taken outside the U.S. by any entity incorporated in the U.S. or any entity having shares registered
with the SEC. This includes any actions taken by a U.S. person serving as an officer, director,
employee, agent or even shareholder any such company.12
The toughness of this legislation made the
U.S. the standard bearer in the fight against public corruption.
Following closely on the heals of the OECD convention and the widespread adoption of enacting
legislation by several of the states parties thereto, the United Nations took up the cause of anti-
corruption and after almost two years of intensive negotiations the General Assembly adopted
UNCAC in October of 2003.13
This Convention was the first globally binding convention to address
bribery and to require that states pass legislation to criminalize international bribery. The major
provisions included in UNCAC designed to address bribery included provisions requiring states to not
only address bribery post-act, as a criminal offense but also to take affirmative steps to prevent
bribery by establishing anti-corruption commissions and requiring public disclosure of government
official assets and the like.14
UNCAC also obligated states to adopt or in some cases consider
adopting legislation that criminalizes not only bribery, but other forms of corruption and related
activities which hide corruption such as money laundering.15
To further support the prosecution of
such acts UNCAC provides that member states also cooperate and provide for specific forms of
"mutual legal assistance" and the sharing of information and cooperation in enforcement activities
across boarders.16
Finally, and maybe most importantly, the member states agreed to provide for asset
recovery mechanisms, whereby assets can be seized and recovered by states whose national wealth
has been plundered.17
The breadth and depth of the convention is sweeping in its obligations and the
degree to which the member states have agreed to cooperate in what has now become a global fight
against corruption.
While slow on the uptake, the U.K. in response to several high profile corruption scandals,
including the BAE case and others finally met its obligations under both UNCAC and the OECD
Convention when it enacted the UK Bribery Act 2010 (the Bribery Act). Several provisions of the
Bribery Act broaden the anti-corruption project even further than before by expanding upon both the
OECD Convention and UNCAC. First, the act addresses both the supply-side and the demand-side of
11
Ibid. at § 2(b), amending, The Securities Exchange Act of 1934, § 30A(f)(1) (codified as amended at 15 U.S.C. 78dd-
1(f)(1)) (1998).
12
Ibid. at § 2(c)(1), amending, TheSecurities Exchange Act of 1934, § 30A (codified as amended at 15 U.S.C. 78dd-1)
(1998).
13
See at https://www.unodc.org/unodc/en/treaties/CAC/ (accessed 7 April 2014).
14
Ibid.
15
See at https://www.unodc.org/unodc/en/treaties/CAC/convention-highlights.html#Criminalization (accessed 7 April
2014).
16
See at https://www.unodc.org/unodc/en/treaties/CAC/ (accessed 7 April 2014).
17
Ibid.

5. Page 5 of 14
bribery. 18
The Bribery Act addresses both public and private corruption, including business-to-
business corruption.19
The Bribery Act also goes beyond the FCPA and other anti-bribery laws in that
it, for the first time, eliminates the long standing exception for facilitation payments. The Bribery Act
is ground breaking in that it also establishes a specific criminal offence for a company's failure to
prevent bribery with an affirmative defense for those companies that have adequate procedures in
place designed to prevent bribery. It is to this specific portion of the Bribery Act that this essay now
turns.
The UK Bribery Act and The Search for a Standard
When arguing over how best to structure a provision in the law that would finally begin to hold
companies, and arguably more important, senior management and board members accountable for the
bribery their employees and agents engage in on the company's behalf, lawmakers considered several
options.20
These options ranged from the general corporate liability standard under UK law, the
Identification Doctrine, with its almost impenetrable corporate shield to tort-like considerations of
negligence and gross-negligence finally settling on application of a strict-liability standard. The
implications for each of these standards on normalization of behavior throughout the organization and
oversight through effective corporate governance deserves discussion here as well as the complicated
relationship between these standards and the proposed defense of "adequate procedures".
Identification Doctrine
Under UK law it is a common feature of corporate liability that a corporation can only be held
liable for the acts of employees if the actions can be linked to a senior officer that represents the
"controlling mind" of the organization. This standard severally limits the ability to hold a
company responsible for the actions of lower level employees. The argument underlying this
principal appears at first blush a common sense argument consistent with the basic
jurisprudential proposition, that one should only be held liable for one's own actions under the
law and not for the actions of other. The argument is often so convincing that it is raised
automatically by companies in the USFCPA context and in corporate cases more broadly.
One need not look to far into almost any case of employee malfeasance, to hear the
bewildering cries of senior management and directors claiming "we can't be held responsible for
the acts of a rogue employee". While this claim often rings true to the ears of the general public
those very same individuals have a sense that something just doesn't sit right with making such a
claim. They would be good to follow those instincts.
18
Bribery Act 2010 (UK) s 1 & 2.
19
Bribery Act 2010 (UK) s 6.2.
20
Joint Comm. on theDraft Bribery Bill, Draft Bribery Bill: First Report of Session 2008-09, 2008-9, H.L. 430-I (UK)
[hereinafter Draft Bribery Bill, vol. I DRAFT BRIBERY BILL, vol. I], available at
http://www.publications.parliament.uk/pa/jt200809/jtselect/jtbribe/115/115i.pdf.

6. Page 6 of 14
As was pointed out by the Director of Public Prosecutions to the Joint Committee the
Identification Doctrine would prove almost impossible to overcome as a standard for prosecution
given that it is rare to find a direct order to bribe being given by a board member to someone
under his charge. Additionally, the OECD Working Group had criticized this standard as not
being dissuasive enough presumably on the grounds that senior management need only claim
ignorance of the whole affair to avoid liability, thus providing an incentive to bury one's head,
instead of taking efforts to prevent bribery. An outcome that runs contrary to imposing corporate
liability in the first instance.
Negligence v. Gross Negligence
The original provisions regarding corporate liability included a negligence standard whereby
organizations would be held liable for negligent failures to prevent bribery. 21
This stood in
contrast to the above mentioned "identification doctrine" and appear to expand the scope of the
offence to include any company where anyone in the organization had been negligent in
preventing bribery. It was asserted that negligence was too high a bar to overcome in proving that
a company should be liable, given the difficulties in proof and or determining which standard
should apply against which to measure the negligence. Thus, negligence was seen as being to
easy an out for corporations and this was viewed to be problematic in "that bribes are most often
paid in order to benefit a commercial organization".22
As an alternative negligence, a gross-negligence standard was proposed. Given that this
provision created a new criminal offence, so commentators noted that the means rea should be
more akin to a criminal offence and as such, a higher level of negligence should be required.
Again, this was viewed with skepticism as it was seen to undermine the intention of the
corporate liability provisions. Most commentators agreed that the provisions were meant to be
prophylactic and encourage or incentivize companies to be proactive in the implementation of
procedures which would prevent bribery in the first instance. It was argued that if corporate
boards and senior management believed that the level of guilt had to rise to a gross-negligence
level, they would for the most part believe themselves insulated from being liable under the
offence and would have little or no incentive to put any procedures in place.23
Wells's Strict Liability
The third alternative standard and that set out by Professor Wells, was application of strict
liability for companies whose agents bribe someone.24
This standard appeared to embody the
21
Ibid. at 31, para 72.
22
Ibid., quoting the Responseof theSerious Frauds Office to the Law Commission Consultation paper no 185, Reforming
Bribery.
23
Ibid. at para 87.
24
Ibid. at para 78.

7. Page 7 of 14
spirit of corporate liability in such cases best but was a concern for those speaking on behalf of
corporate interests.25
The concern being that holding the company strictly liable for the actions of
any agent or employee who brides in all cases, places too much responsibility on directors and
senior management to basically police the acts of all employees or, more troublingly, that of
every agent that act on behalf of the company, including those agents over whom the company
has little or no control such as independent agents. The Joint Committee report points out that the
law has in several jurisdictions adopted the basic proposition that a company is strictly liable for
the acts of employees.26
This standard is akin to Respondeat Superior or a form of agent/principal
liability. While respondeat superior is not a common feature of U.K jurisprudence, by adopting a
strict liability standard whereby corporations are liable for any and all bribes paid by an
employee or other type of agent, this in a sense gets respondeat superior in through the backdoor
and achieves the desired result that companies not be able to claim ignorance as a defense. That
being said, without providing any defense at all in this context, corporations would potentially be
incentivized to not address the anti-corruption issue in the first instance because it would not
matter what level of attention they paid to the issue or what procedures they put into place to
prevent bribery, they would be liable regardless. This appeared to work against the intention of
the provision in the first instance, that being that companies should be incentivized to design
procedures to prevent bribery. Thus, the introduction of a defense was viewed necessary to make
the strict liability an effective standard to hold corporations against. This gave rise to the
adoption of the "adequate procedures" defense.
The Vague-ries ofthe "Adequate Procedures" Defense
When designing the corporate liability provisions of the Bribery Act, careful consideration was
given to whether a defense should be provided for corporations, which could be subject to criminal
liability under the Bribery Act, again, be it negligence or strict liability as discuss previously. The
proposed defense of having "adequate procedures designed to prevent [bribery]" was viewed as
providing corporations with an incentive to develop and implement anti-corruption procedures. The
defense reads in full as follows:
But it is a defence for [a commercial organization] to prove that [the commercial
organization] had in place adequate procedures designed to prevent persons associated
with [the commercial organization] from undertaking such conduct.27
As some pointed out during the legislative process, as worded, the defense provides no guidance
as to what procedures would prove to be sufficient. The wording on its face does not provide anything
25
Ibid. at para 83.
26
Ibid. at para 79.
27
Bribery Act 2010 (UK) c. 23, s 7(2).

8. Page 8 of 14
more then a general assertion and lacks the specificity normally required of criminal statutes. Indeed,
the Joint Committee noted that there was "near-unanimous agreement in evidence that the meaning of
'adequate procedures' . . . [would] require amplification through guidance."28
Cast in its final form, the
defense appears to create more confusion than it does incentive and the vagueness of the language
could serve to be its demise. Thus, in order to divine the meaning and parameters of the defense, this
essay will undertake a formal interpretive analysis of the statute.
The Appropriate Interpretation of "Appropriate Procedures"
In undertaking the exercise of statutory interpretation, certain rules of construction inform
the formal analysis for determining the meaning of a statutory provision. These include such
principles as 1) the utilization of the legal meaning of the words of a statute, 2) common usage
meaning of terms used in a statute in the absence of any legal meaning, and 3) that meaning of
the statute as worded, which comports with the intention of the drafters of the legislation. Each of
these tools will be utilized in turn to explored the possible meanings of the phrase "adequate
procedures" and why the commonly agreed upon interpretation that "its up to judges to decide",
while arguably appropriate under one method of interpretation, may not be the correct answer,
and why the correct interpretive answer may prove quite unsatisfactory to those who support the
use of the Bribery Act as a means of pushing forward the anti-corruption project.
Legal interpretation
One of the basic approaches to interpreting a statute involves utilizing the legal interpretation
of words used in the statute. This involves deriving the meanings of words having legal
significance as provided for in the statute itself (i.e., as defined within the statute) or from other
sources where such words are given a legal meaning. For example, the use of the word person
can have several different legal meanings such as referring to either individuals or juridical
persons and as such, legislation will often provide a specific definition of the "person" means for
the purposes of the statute. In the case of the Bribery Act the term "adequate procedures" is only
mentioned in the wording that sets out the defense itself. No where else in the Bribery Act is the
word "adequate" mentioned and the word "procedures" is only mentioned in one other place
within the Bribery Act and that is under Section 9, which provides that:
The Secretary of State must publish guidance about procedures that relevant
commercial organisations can put in place to prevent persons associated with them
from bribing asmentioned in section 7(1)29
28
Draft Bribery Bill, vol. I , supra note 20,at para.91 (U.K.).
29
Bribery Act 2010, c. 23, § 9 (U.K.).

9. Page 9 of 14
Thus, while it appears that certain procedures may gain some meaning from subsequent
guidance, there is no indication that such procedures as may be set out in such guidance would
prove "adequate" as is required by the language of the statute in order for a corporation to avail
itself of the defense. While this may seem a splitting of hairs, the statute is imposing strict
liability upon a corporation for failing to prevent any agent from paying a bribe, thus if a
meaningful defense is to be provided the meaning of the words of the defense need to be
adequately defined and understood by the corporation's actors or agents. At his point there is
nothing in the statute that provides a legal definition of the term "adequate". Thus for any
guidance issued by the Secretary of State or other authority to provide sufficient clarity, this
guidance would have to specifically present in sufficient detail the actions that would be
considered "adequate" under the law and identifies them as being such, or provides a specific
legal definition of the word "adequate" as applied in to the Bribery Act. A mere issuance of
guiding principles discussing what procedures a company could adopt would simply not provide
a legal definition of the term "adequate".
Common usage interpretations
In the absence of a legal definition being provided for a term of use in a statute, a second
method for determining the meaning of a particular statutory provision is to refer to the
commonly understood meaning of the particular term in question. An example of this type of
interpretation would be the use of the term "year". While one could argue that the term year
could potentially have several definitions, (e.g., calendar year, lunar year, light year, etc.) it
would be commonly understood to mean one Gregorian year consisting of 365 days, where the
word to be used in a statute passed by a legislature in the U.K., the U.S. or a number of other
"western" jurisdictions and thus an additional legal definition would not be needed to understand
the meaning of the term. Additionally, where there may be multiple common usages of a
particular term, it is common to make reference to a dictionary for an indication of the common
meanings given to a term.
The term "adequate" is one such term. Common meanings of the term adequate can range in
meaning and, as such, reference to dictionary usages should prove helpful in determining which
meaning should attach in this case. The Oxford English Dictionary defines the term "adequate"
as: "satisfactory or acceptable in quality or quantity".30
The Merriam-Webster Dictionary defines
the term as: "1) sufficient for a specific requirement; also : barely sufficient or satisfactory 2)
lawfully and reasonably sufficient".31
Black's Law Dictionary provides the following definition:
"sufficient; proportionate; equally efficient".32
Thus when common usage is considered, a range
30
http://www.oxforddictionaries.com/definition/english/adequate?q=adequate
31
http://www.merriam-webster.com/dictionary/adequate
32
http://thelawdictionary.org/adequate/

10. Page 10 of 14
of meanings can be given to the phrase "adequate procedures" in the context of the defense as
stated, namely, "adequate procedures designed to prevent persons . . . from undertaking
[bribery]."
Based on the above definitions, one meaning of the phrase "adequate procedures" could be
that the defense requires that the corporation, "has . . . sufficient procedures designed to prevent
bribery" or stated another way "has . . . procedures sufficiently designed to prevent bribery" but
this definition would prove problematic and unworkable within the context of the statute. The
statute imposes a strict liability offense on a corporation for "failure to prevent bribery" with a
defense. If the defense requires that the procedures are sufficiently designed to prevent bribery,
then the fact that bribery took place would in an of itself prove they were not sufficient, and as
such, the defense would have no meaning as a defense. It would mean that a company would
always be liable whenever an agent commits bribery regardless of the level of preventative
measures put in place. While this would ensure that the provision is actually a strict liability
provision, as was anticipated by the drafters in the first instance, it would yield the language of
the defense superfluous and meaningless. This is problematic in the statutory interpretation
context because where the words or a statute are open to multiple interpretations, one leaving the
provision meaningless in context and the other giving effective meaning to the words, then the
meaning which results in an effective meaning should prevail, as it is not appropriate to assume
that legislators would insert meaningless provisions into a statute, especially a criminal statute.
Thus, if another meaning for the phrase can be found that breaths meaning into the defense that
meaning would prevail over the one discussed here.
Accordingly, as second meaning of the phase based on the common usages set out above
could be that the corporation needs only have "barely sufficient procedures designed to prevent
bribery". This would seem to provide companies with an argument that in the absence of specific
procedures set out in the Bribery Act or any guidance, the company need only adopt minimal
procedures aimed at preventing bribery. From a corporate planning or governance perspective,
companies would prefer this approach as they would be able to spend minimal amounts of
corporate funds, even potentially nothing, on implementing only the most minimal of procedures
and still be able to claim that they qualify for the defense. This interpretation would not likely sit
well with the drafters of the statute as it would appear to undermine the strict liability nature of
the provision, but they would be hard pressed to point to any definition of "adequate" within the
Bribery Act or elsewhere to bolster their claim that any particular procedures are required or that
any particular set of procedures is not "adequate". Additionally, the burden of proving adequacy
should fall on the defendant but again, how is one to prove something is adequate when there is
no definition of what constitutes adequacy. Equally problematic, is the prosecution's burden of
proving that the defendant has not proved certain procedures were not adequate, as there is no

11. Page 11 of 14
standard against which to measure adequacy. In such cases, it appears that the judge would be the
one to decide whether the proffered procedures were adequate, but this would also prove
problematic as again, the judge would have no objective standard against which to measure
adequacy. Any determination the judge made would be open to attack on appeal as arbitrary and
subjective, and in the context of criminal liability no less. This is most likely the position that
corporations will take and could substantially undermine the use of the Bribery Act to promote
companies to undertake their own development of robust anti-corruption regimes in anticipation
of a remotely needed defense in case someone related to their organization happens to fall under
the other substantive provisions of the Bribery Act.
A third interpretation, and one that appears to have been adopted by the U.K. government, is
that this provision requires that the company implement "risk-based systemic procedures
designed to prevent bribery". 33
This interpretation would seem to require that a corporation
implement a "reasonably" designed anti-corruption program that mitigates the risk of bribery but
not one that necessarily prevents bribery. There are a few problems with this interpretation. First,
how is one to determine what is reasonable. Second, providing a reasonability based defense to a
strict liability statute seems inconsistent with strict liability as a standard. Third, no where in the
Bribery Act is the word risk mentioned, even once. Fourth, this interpretation appears to add an
affirmative duty on corporation's to prepare a defense before ever being accused of the particular
offence in question, an affirmative duty that is not provided for within the Bribery Act itself.
Fifth, the interpretation is inconsistent with the requirement under statutory interpretation
principles that where a statute is subject to multiple interpretations, the interpretation that
benefits the defendant in a criminal proceeding should control over one that inners to the benefit
of the government.
While this interpretation may be preferred by the government, private and quasi-private
bodies and supporters of the anti-corruption project in the larger sense, this interpretation cannot
hold when considered closely. Unfortunately, in spite of the commendable and even laudable
efforts of non-corporate actors that stand behind the project and their well motivated desire to
incentivize corporations to act to address the problem, an interpretation of the defense which
contorts the language and imposes affirmative duties on a corporation that are simply not
included in the language of the statute cannot stand under proper statutory interpretation
principles. Unfortunately, the language of the statute as written must be interpreted to require a
company to only do as little as needed to demonstrate that it did something to prevent bribery and
as such the defense provide a company with a fairly easy standard to obtain. Yet, there is still a
33
See generally, Ministry of Justice, The Bribery Act 2010 - Guidance about procedures which relevant commercial
organisations can put into place to prevent persons associated with them from bribing (section 9 of theBribery Act 2010)
(UK).

12. Page 12 of 14
larger problem lurking within the wording of the defense. As has been mentioned in passing
above, the wording is insufficient on it's face to be considered viable as a defense in that the
wording is vague and vagueness in the context of a criminal statute can render an entire provision
void. The issue of the provision being "void for vagueness" and the implications arising
therefrom may prove more difficult to the provision's effectiveness the difficulties in interpreting
language the is there. It is to this significant issue that this essay will not turn.
Void for Vagueness
Over the centuries, it has been a fundamental principal of statutory and criminal code
construction that the law should be set out with sufficient specificity for an individual to be able
to understand what the law requires and how to conduct ones affairs and behaviors so as to
comply with what the law requires. Bacon summed it up with his maxim, "It is a miserable
slavery where the law is vague or uncertain".34
As did Bentham in his criticisms of Blackstone
for his vagueness of what the law is.35
While there have been instances in the past of laws drafted
in a broad and imprecise manner, these laws have been viewed with suspicion and either ignored
or in some instances been subjected to review by courts and held to not be valid. Lord Francis
This principal is so fundamental that it has been held a right afforded individuals under the U.S.
Constitution as part of its procedural due process provisions.36
While this is fine in progressing the development of a comprehensive system of anti-
corruption writ large, it raises issues as a statutorily based motivator in that the language of the
statute, again, does not provide sufficient guidance as to what conduct suffices. Strategic
privatization37
of regulatory processes cannot be mandated through vague criminal statutes left
open to anyone's interpretation. This dangerously undermines long held foundational principals
of statutory construction, namely that legislation should be of such a nature as to inform the
citizenry of what specific actions will or will not constitute a violation of the law so that
individuals are able to conduct themselves in a manner which is consistent with the law. Over the
years, the idea that a statute must specifically spell out the exact actions has been relaxed but
only to the extent that a statute delegates the detailing to another agency or authority of the
government, not to the extent that vague principals of general approach can be a substitute for
specific actus reus requirements.
Represents a problematic reversal of recent developments in the regulatory space to adopt soft
law mechanisms for coercing certain behavioral outcomes. While it is one thing to use soft law
34
Res est misera ubi jus est vagum et incertum. Also, Ubi jus incertum, ibi jus nullum. Where thelaw is uncertain, there is
no law and Incerta pro nullis habentur. Uncertain things are regarded as nothing.
35
Bentham, A Fragment on Government or A Comment on theCommentaries, London 1923 at 198.
36
City of Chicago v. Morales, 527 U.S. 41 (1999).
37
K. Hall, Comments: Strategic Privatization of transnational anti-corruption regulation.

13. Page 13 of 14
forms of nudging in addition to or in place of the traditional command and control mechanisms
of legislation, it is entirely another to ignore the safeguards against abuse of state power
enshrined in criminal law by allowing statutes to be written in a manner that includes only soft
law guidance principles. By this I mean that opening up the statutory process and morphing it
into a principles based statutory process leaves individuals vulnerable to abuse of state power in
that the principles based approaches are by definition open ended and not detailed enough to
make a determination as to when ones behavior comports with the law or not. For example, it is
one thing to post a speed limit and inform individuals that if they exceed the limit they are
strictly liable to a fine and yet, through enforcement allow that limit to serve not as an automatic
trigger but more as a suggested example of the appropriate speed. It is quite another to simply
post a sign that says "No Speeding" and then ticket individuals going at various speeds. It is easy
to see how this might produce problematic results and claims of arbitrariness. The same could be
said for a rule that says, "Do something about bribery or else". Do what? Well, it's not for us to
tell you. You figure it out. How the drafters could have thought this would incentivize senior
management to spend what in some cases could be millions of dollars on a compliance program,
without any assurance that what they are doing will be of any benefit, seems either naive or
intentionally structured to be ineffective. As we must assume that legislators would not
intentionally structure a provision of the statute to be intentionally ineffective, then the only
conclusion is that they must have honestly believed that this would motivate directors and senior
management to act,despite the uncertainty around the effectiveness of their actions.
It is simply not enough to say, well, you can try your best but you won't know until a judge
tells you whether you've done it adequately or not. Nothing will motivate a company more to do
as little as possible to comply with a law than being told that no one knows what you should do
and in what measure and anyway no matter what you do you won't know until a judge tells you if
you've done enough or not. To the corporate mind this translates to, "well if I don't know what to
do now and how much to spend doing it and it may not matter if I do anything because I may be
held liable anyway (i.e., the costs could be significant and the benefits uncertain and remote),
then maybe its better to save on the expenditures and wait until the risk crystalizes". This is the
mindset of businessmen the world over. In the context of uncertainty, err on the side of
conservatism, which means don’t spend money if you can't be sure of a benefit and if you don't
know how much is enough then don't do anything. The incentive created by drafting the defense
in this manner has just the opposite incentive of that intended by at least some of the drafters.
Conclusion - The Way Forward
So where do we go from here? As the defense appears inadequately definite to provide sufficient
guidance to anyone subject to a strict liability offense under the main provision, we are left with a

14. Page 14 of 14
strict liability standard for corporations whose employees bribe. I would argue that this is not
necessarily the wrong place to be. In the battle against corruption, holding companies liable for the
actions of all employees and agents would mean that management would be incentivized to do what
management is hired to do, and that is manage the organization. It is a very western sort of
management concept to say, "Well it's not my fault. I didn't know." in response to an accusation that
someone under your charge has done something wrong. Claiming ignorance in this context
demonstrates a negligent failure to preforms ones duties at best or willful dereliction of duty at worst.
Neither of which should be acceptable where boards and the management they hire are charged with
duties to act on behalf of absentee corporate owners (i.e., shareholders). Strict liability is the standard
that best supports and motivates in this context.
Yet, as regards the defense of "adequate procedures" it is purely inadequate in this context. While
it is admirable that legislators have made an attempt to promote the involvement of corporate actors,
third party service providers and international organizations in exploring how best to develop anti-
corruption systems based on procedures designed to prevent corruption, the method for doing so is a
questionable one. The better alternative appears to be the internal controls requirements for financial
reporting under the U.S. FCPA/SEC model and which has been adopted by the U.K. through recent
actions against insurance companies by the U.K. Financial Conduct Authority.38
These systems have
been set up in such a manner as to require that companies have robust internal controls over corporate
actions and disclosure based on a history of financial reporting and to have robust corporate
governance procedures. This system has developed over time into a robust system of know-how and
standards such that corporate actors have little trouble understanding or knowing what constitutes an
appropriate level of oversight or behavior. This systems-based approach works and should be
permitted to work. The failure here is in trying to import a systems approach to preventing-corruption
through the substantive legislation itself as a defense to imputed strict liability.39
The better approach
would be to either mandate the requirement directly within the statutory scheme as is done with
internal controls for financial reporting and risk management (i.e., companies are required to
implement a system of anti-corruption. This system must be reviewed and audited by an outside
auditor.) or to add anti-corruption to the already existing system of internal controls reviews that exist.
Either method would prove more useful and "adequate" in motivating the development of anti-
corruption procedures than a mere general, uncertain and confusingly worded defense against a strict-
liability offense.
38
See http://www.fcpaprofessor.com/the-u-k-financial-conduct-authority-and-its-focus-on-adequate-procedures-to-prevent-
bribery for a general discussion of both theWillis Limited and Aon cases.
39
Hall, above n. 37 at 65-68.