UK Bribery Act: Active and Passive Private Bribery

Given its global reach, the UK Bribery Act must always be taken into consideration by attorneys in designing any anti-bribery compliance program. This includes companies and other entities that are subject to the terms of the FCPA.  In particular, sections 1 and 2 of the UK Bribery Act must always be kept in mind.

Section 1 of the UK Bribery Act relates to improper inducements to anyone. The status of the intended recipient of the improper inducement is irrelevant. It does not matter whether the intended recipient is or was a foreign government official.  From a conceptual standpoint, the underpinnings of section 1 vary to some degree from what is considered commercial or “private bribery” under U.S. law.  Yet the conduct that is sought to be deterred is essentially the same.

While there is increasing recognition as to the need for compliance programs to address and deter private bribery in the form of improper inducements, conduct prohibited under section 2 of the UK Bribery Act also needs to be addressed and deterred.  Section 2 addresses passive bribery, improper practices associated with those who seek or receive improper inducements. The classic example would entail situations where some sort of “kickback” is sought in return for an individual to breach his or her duties to others, such as his or her company.

Section 2 is frequently overlooked for the reason that most anti-bribery compliance programs focus on affirmative conduct directed to others that may be perceived to be improper inducements.  While many companies generally forbid improper practices of this nature, seldom do their compliance programs focus on the solicitation and receipt of improper inducements.