UK's Anti-Bribery Law Could Be a Global Game-Changer
Source: Mining Weekly, Martin Creamer (6/7/11)
"UKBA has even sharper teeth than the U.S. Foreign Corrupt Practices Act."
Britain's new anti-bribery law, which comes into force on July 1, has global reach.
"This legislation may be game-changing in how mining businesses will be held accountable for their actions around the globe," London associate Daniel Smith and Africa partner Chris Langdon of the law firm Latham & Watkins report.
The lawyers say that UKBA, as the UK Bribery Act is dubbed, has broad criminal offenses that prohibit bribery and even sharper teeth than the US's Foreign Corrupt Practices Act.
For example, 'facilitation payments,' which are permitted under the US's anti-bribery counterpart law, fall foul of UKBA, which not only prohibits active bribery in the official sphere, but also passive bribery in the private sphere.
The UK law criminalizes the failure to prevent bribery, even by service-providing third parties, and only businesses that have "adequate procedures" to prevent bribery have a defence.
They advise businesses to adopt proportionate bribery-prevention policies and procedures, and to ensure that these are embedded and understood.
UKBA's wide scope means that firms must ensure that entertaining, gifts and expenses have a legitimate business purpose even at joint venture, investment and agent levels.
"Make sure you know what they are doing and that they understand the law to prevent being liable for their wrongdoing," say Smith and Langdon.
In the area of government liaison, mining licenses and concessions, companies need to ensure that dealings with officials, especially through agents, co-investors and local partnerships, are transparent and lawful.
"Make sure your people follow your policies and react to incidents of wrongdoing; investigate and take appropriate remedial steps," the lawyers advise.
Companies, they say, should assess what bribery risk they face, adapt risk-reducing procedures and ensure that those procedures are implemented.