Identify relevant jurisdictions likely to be triggered by the bribery/corruption
Consider which jurisdictions are likely to be relevant to the investigation. In this regard the following should be identified:
- the nationality and place(s) of residence of all relevant individuals
- where all relevant corporations are registered and do business (if different)
- the identity and location of any banks used to process relevant payments (noting in particular where any payments were in US dollars or routed through a US bank)
- which regulators or prosecutors may become involved and their regulatory or prosecuting powers
Where further relevant jurisdictions are identified, consider the additional associated risks (with the involvement of local counsel or other experts such as accountants, if appropriate). Such risks typically include the approach to enforcement of the prosecutorial authorities in the other jurisdiction(s), as well as the extent and nature of penalties commonly imposed (including whether debarment may be ordered, for example).
Jurisdictions with extra-territorial legislation
You should consider whether you are subject to legislation with extra-territorial reach, most notably the US Foreign Corrupt Practices Act (FCPA) and the UK Bribery Act.
Foreign Corrupt Practices Act (FCPA)
The anti-bribery provisions of the FCPA apply to:
- any entity or organisation formed under US law or having a principal place of business in the US
- ‘issuers’ of US-registered securities
- officers, directors, employees, ‘stockholders’, and agents of the above
- any US citizen or resident located anywhere in the world
- any other person ‘while in the territory of the United States’ or taking/causing any action in the United States. Note that, under US conspiracy principles, any act in the US by any member of a conspiracy will be attributed to all members of the conspiracy for jurisdictional purposes
The books and records provisions of the FCPA apply to any company with securities listed on a US national securities exchange, wherever it is located.
Bribery Act
The corporate offence of failing to prevent bribery has broad jurisdiction, applying to any UK-incorporated company and any non-UK company that carries on a business or part of a business in the UK. If your company falls within the scope of this offence, you may be liable for the acts of ‘associated persons’ (eg agents, employees or subsidiaries), regardless of whether this associated person or the bribe in issue has any other connection to the UK.
