I Get by with a Little Help from My Friends? Understanding the UK Anti-Bribery Statute, by Reference to the OECD Convention, and the Foreign Corrupt Practices Act

Abstract

The UK Anti-Bribery Act makes both bribery of a public official and private-to-private commercial bribery illegal; it imposes a (strict liability) offense for commercial organizations which fail to prevent bribery by persons associated with them. The Act has extraterritorial effect and applies to transactions of British subjects or on British territory. Commercial organizations may raise the statutory defense of adequate procedures in place to prevent bribery which, if proven, exonerates the commercial organization from the strict liabity for bribery by their associated persons. Unlike the FCPA, the UK Act does Not exempt facilitation payments (grease) from coverage. The Act meets and exceeds Britain's obligations under the OECD Anti-Bribery Convention, itself too an outgrowth of the U.S. FCPA and seeks to raise international standards and relies on soft law to do so in tandem with hard law.

The British Act is often criticized for overreach and ambiguity. This article analyzes the genesis of the British Act, arguing that several of the criticisms of the British Act are valid but that the act can be cured of many of its perceived flaws by reference to common law concepts (e.g., agency) or by reference to flanking international instruments as persuasive evidence of the British legislator's intent and/or of the desired goals the Act seeks after. The Act is notable in that it represents the success of hard law crystallizing out of soft law. The Act is also notable in that it will inevitably generate more soft law (codes of conduct, contract terms, managerial guidelines) as companies scramble to set up adequate procedures. The development of best practices in business is an example of the use of private law norms to generate binding law. It could be seen as an evidence of Professor Steiner's Lex Mercatoria hypothesis.

Keywords: bribery, corruption, fcpa, oecd, convention, UK, anti-bribery act, Britain, British, Counsel of Europe, EU

JEL Classification: K14, K33, K42