FCPA and UK Bribery Act 2010 Offenses Comparison Chart

FCPA and UK Bribery Act 2010 Offenses
Comparison Chart
(As of 1 June 2011)

Comparison Chart: FCPA and
UK Bribery Act 2010 Offenses
1. Key Offenses Bribery of a foreign
official
2. Penalties In summary:
FCPA Bribery Act
Criminal fine for entities
up to US $2 million and
for individuals up to US
$250,000 and up to five
years’ imprisonment
Civil penalties up to US
$10,000 per violation.
Penalty may also
include debarment from
contracting with the
federal government
3. What is prohibited Offering or making a
payment of money or
anything of value directly
or indirectly to a foreign
official, international
organization official,
political party or party
official or candidate for
public office
Failure to maintain books,
records and accounts
Criminal fine for entities
up to US $25 million and
for individuals up to US $5
million and up to 20 years’
imprisonment
Civil penalties up to US
$500,000 for entities
and US $100,000 for
individuals
Bar from serving as officer/
director of public company
Failure to keep books,
records and accounts
which, in reasonable
detail, accurately and fairly
reflect the transactions
and dispositions of
assets of the issuer and
to maintain an adequate
system of internal
accounting controls (and
to use good faith efforts
to the extent reasonable
to influence its foreign or
domestic subsidiaries also
to do so)
Offering a bribe Accepting a bribe Bribing a foreign official Failure by a body corporate
to prevent bribery
Unlimited fine and/
or maximum 10 years’
imprisonment
Offering, promising or
giving a financial or other
advantage
Unlimited fine and/
or maximum 10 years’
imprisonment
Requesting, agreeing
to receive or accepting
a financial or other
advantage
Unlimited fine and/
or maximum 10 years’
imprisonment
Offering, promising or
giving a financial or other
advantage
Unlimited fine
Bribery of another person
by a person “associated”
(see definition below) with
the body corporate
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Comparison Chart: FCPA and
UK Bribery Act 2010 Offenses
1. Key Offenses Bribery of a foreign
official
4. Who is liable/territorial
application
5. Requisite proof of
intent/purpose
FCPA Bribery Act
Issuers (and their officers,
directors, agents and
employees)
US domestic concerns
(US citizens, US corporates
and businesses with a place
of business in the United
States)
Persons acting within the
United States
The payment is made for
the purpose of influencing
that official to assist in
obtaining or retaining
business or in directing
business to a particular
person to secure an
improper advantage
Failure to maintain books,
records and accounts
Issuers with securities
listed in the United States
(enforced by the SEC)
Knowingly falsifying any
book, record or account
OR
Knowingly circumventing
or failing to implement
an internal system of
accounting controls
Offering a bribe Accepting a bribe Bribing a foreign official Failure by a body corporate
to prevent bribery
A person committing the
relevant act or omission in
the United Kingdom
OR
A person committing the
act or omission overseas
where the person has a
“close connection to the
UK” (see definition below)
Note: If the offense is
committed by a body
corporate with the
consent or connivance of
a senior officer, he is also
liable
Intention to induce
a person to perform
improperly a “relevant
function or activity”
(see definition below) or
reward them for doing so
OR
Knowing or believing
that the acceptance of
the advantage itself
constitutes improper
performance of a
“relevant function or
activity”
A person committing the
relevant act or omission in
the United Kingdom
OR
A person committing the
act or omission overseas
where the person has a
“close connection to the
UK”
Note: If the offense is
committed by a body
corporate with the
consent or connivance of
a senior officer, he is also
liable
Intention that a “relevant
function or activity”
should be performed
improperly
Note: No proof of
intention is required
where:
• The request, agreement
or acceptance is itself
improper performance
by the recipient
OR
• The request, agreement
or acceptance is
a reward for or in
anticipation of the
relevant improper
performance
A person committing the
relevant act or omission in
the United Kingdom
OR
A person committing the
act or omission overseas
where the person has a
“close connection to the
UK”
Note: If the offense is
committed by a body
corporate with the
consent or connivance of
a senior officer, he is also
liable
Intention to obtain or
retain business or an
advantage in the conduct
of business
It is not necessary for the
briber to intend that the
official act improperly. It
suffices that he intends to
influence him
Any UK body corporate
or partnership (or
foreign corporate or
partnership which
“carries on a business or
part of a business” (see
explanation below) in the
UK) in respect of acts or
omissions taking place in
the United Kingdom or
elsewhere
The “associated” person
intends to obtain or retain
business for the body
corporate or to obtain or
retain an advantage in the
conduct of business for
the body corporate
Note: It is not necessary
for the associate to be
prosecuted for bribery
in order for the body
corporate to be liable

1. Key Offenses Bribery of a foreign
official
6. Defenses It was a reasonable and
bona fide expenditure
(such as travel and
lodging expenses) directly
related to the promotion,
demonstration or
explanation of products or
services or the execution
or performance of a
contract with a foreign
government or its agency
FCPA Bribery Act
It was facilitating or
expediting routine
governmental action
OR
It was permitted by local
written law
Failure to maintain books,
records and accounts
Offering a bribe Accepting a bribe Bribing a foreign official Failure by a body corporate
to prevent bribery
None None The foreign official is
permitted by the written
law applicable to him to
be influenced by the offer,
promise or gift
The body corporate is
able to prove that it had
adequate procedures
designed to prevent
persons associated with
it from undertaking such
conduct
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Comparison Chart: FCPA and
UK Bribery Act 2010 Offenses
Terms
“Close connection to the UK” This includes, among others, a British citizen; a British overseas territories citizen; a UK resident; and a UK body corporate.
“Relevant function or activity” This includes functions of a public nature OR activities connected with a business OR performed in the course of employment OR performed by or on behalf of a
body corporate or unincorporated body PROVIDED the person is (a) “expected” to perform it in good faith or (b) “expected” to perform it impartially or (c) the person
is in a position of trust by virtue of performing that function.
“Expected” This is the expectation of a reasonable person in the United Kingdom.
“Carries on a business or part of a business” A foreign company which carries on any part of its business in the UK could be prosecuted for failure to prevent bribery even where the bribery takes place wholly
outside the UK and the benefit or advantage to the company is intended to accrue outside the UK. The Bribery Act does not define what constitutes “or part of a
business” and until this is clarified in the law courts, a company should exercise caution. A representative office or UK agent may be sufficient to engage the Act.
The company’s only statutory defense would be to prove the existence of adequate systems and controls.
“Associated” The corporate offense of failure to prevent bribery applies when a person associated with a company bribes another person intending to obtain or retain
business for that company. The associated person must be providing services for or on behalf of the company and could cover employees, agents, other forms of
intermediaries and subsidiaries. It is not necessary for the person performing the services to have been convicted of the bribery offense for the company to be held
liable. The Act provides that an associated person will be determined by reference to all relevant circumstances and not merely to the relationship between the
person and the company.
“Senior officer” This means, in relation to a body corporate, a director, manager, secretary or other similar officer of the body corporate, and in relation to a Scottish partnership,
a partner in the partnership.

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