From the perspective of global anti-bribery compliance, practitioners, corporate counsel, consultants, and others are in constant need of insights as to how to meet the overlapping obligations under the UK Bribery Act, the U.S. Sentencing Guidelines, and the FCPA’s internal control provisions relative to putting policies and procedures in place to prevent or deter the bribery of foreign officials as well as officials in the private sector. While the essence of each of these legal regimes is remarkably similar, there is always a constant and gnawing concern that some important consideration may have been overlooked.
Given the paucity of decisions interpreting these relatively new legal regimes, the pleadings and other papers filed in conjunction with the resolutions reached with the U.S. Department of Justice and Securities and Exchange Commission can provide insights as to whether an entity’s policies and procedures may be defective. Theguidance issued by the UK Secretary of State relative to meeting the requirements of section 7(2) of the UK Bribery Act can also be an extremely useful tool. Its usefulness not only extends to entities seeking to comply with the UK Bribery Act, it also can be very useful for entities seeking to comply with both the anti-bribery and internal control provisions of the FCPA.
Another useful tool is the consultation containing the original draft of the guidance for complying with section 7(2) of the UK Bribery Act. Though the original draft was not adopted and has little or no significance from a regulatory perspective, it nonetheless raises a number of issues that may be helpful in devising and developing a set of policies and procedures to deter the bribery of foreign officials as well as members of the private sector.