“While it is entirely understandable that the government wishes
Parliament to direct provisions to UK companies and show a
strong hand to the international community, it is equally
important that it does not suffocate activity in markets where
those companies come up against international competitors.”
Discuss the extent to which the Bribery Act 2010 has balanced the two
objectives identified by Michaelson and Berkeley in this extract.
As a member country of the Organisation for Economic Co-operation and
Development, the UK ratified the OECD Anti-Bribery Convention and in
principle agreed to meet the standards set. Despite this, the UK was
unsuccessful in fulfilling its obligations and this resulted in a ‘turning
point’ whereby the Bribery Act 2010 was implemented. The Act’s
predecessors were crucial factors owing to the implementation as they
were considered ‘inconsistent, anachronistic and inadequate’. This Act
codifies the law and quietens the criticism of the UK for ‘lagging behind
international competitors’. It is noteworthy that the phrase on the lips of
so many commentators is ‘level playing field’ which ‘works both ways’.
Thus, this essay’s aim is to succinctly examine the extent to which the Act
has brought the UK ‘into line with international norms on anti-corruption
legislation’. However, it is also argued that the Act may be
disadvantageous for UK businesses as stricter obligations are imposed
compared to their foreign competitors. It is intended to take the two latter
objectives and analyse the degree to which the Act has balanced them.
There have been arguments against the ‘delay’ in implementation of the
Act and these provide strong bases for establishing a ‘strong hand to the
international community’. The OECD’s Working Group on Bribery opined
that it was ‘very disappointed . . . [in] the further delay’; proceeding to
affirm that ‘establishing a level playing field for international business . . .
will help strengthen the global economic recovery’. The OECD’s dismay at
the delay was clear when they claimed that they would ‘threaten to
blacklist British companies’ should they remain ‘under-regulated’. The
OECD urged the United Kingdom to implement the Act ‘as a matter of high
priority’ whilst Transparency International claimed that the delay ‘raised
serious doubts about the credibility of the government’s commitment to
the Bribery Act’. Thus, it is widely accepted that the Act was critical in
bringing the UK into line with OECD member states on anti-bribery.
The USA has ‘been at the forefront of prosecuting international
bribery’ and thus far ‘has been [the] predominant force in setting
compliance standards for international businesses’. The FCPA was
regarded, until the OECD Anti-Bribery Convention, as the only ‘explicit
extraterritorial anti-bribery law’. However, it can be seen that the UK
Bribery Act has ‘raised the bar’; and in doing so has shown ‘a strong hand
to the international community’. The government define the Act as a
, ‘modern and consolidated bribery law’ that superseded the ‘current law
[that was] riddled with uncertainty and in need of rationalisation’. Despite
this, it remains to be seen whether the Act will ‘provide a better
framework for the successful prosecution of bribery and corruption
offences in the globalised industrial economy’.
It has been shown that the preceding laws did not comprise the common
law offence of bribery and were ‘outdated, unclear and lacking in scope’.
These laws would not be capable of allowing the UK to fulfil their
international obligations under the 1997 Anti-Bribery Convention. Bribery
is described as being ‘in its very nature insidious’ that has ‘potentially
devastating consequences’. With this in mind, many commentators
illustrate the importance of the Act ‘to deal with bribery much more
effectively’. It is argued that the old laws were lacking in scope because of
their inability to apply to overseas subsidiaries; thus, they could not
achieve the standards set by the OECD.
Looking at the FCPA in more depth, and comparatively analysing it, allows
the extent to which the Act has ‘shown a strong hand to the international
community’ to be examined. The 1906 legislation did not refer to foreign
public officials and the Bribery Act sought to amend this. In doing so, this
fulfils the standards set out by the OECD regarding anti-bribery. Both the
FCPA and the Act forbid the bribery of foreign public officials and provide
evidence to suggest that the two Acts are similar in effect. The prohibited
conduct in relation to the two Acts is similar: the FCPA’s wording suggests
that it is irrelevant whether the bribe is ‘voluntarily offered or was
suggested or demanded by an official’. The Bribery Act parallels the
FCPA by including ‘an advantage [that] benefits the official at his request
or with his ‘acquiescence’. Despite the fact that there are discrepancies in
the language, there is evidence to suggest that the UK has succeeded in
its attempt to move into line with ‘international norms on anti-corruption
legislation’. Further to this, it is argued that because the definition is so
broad, in both Acts, it could cover those who do not appear to be foreign
public officials. The ‘stand-alone offence’ per section 6 puts the UK legal
framework in general congruence with the OECD Anti-Bribery Convention
as well as the US FCPA’.
Given that the UK has been under scrutiny to bring itself into line with
anti-bribery norms, there has been strong criticism against the Act as it is
extremely onerous on UK businesses; thus, stifling their opportunity in the
international community. It has been argued that the Act is ‘more
restrictive than [the FCPA]’ and ‘provides the UK with some of the most
draconian and far-reaching anti-corruption legislation in the world’. In a
report by Parliament, it was clarified that this would ‘prejudice the
international competitiveness of UK businesses. The importance of this
was exemplified by Frost when he commented: ‘in a cut and thrust world
of exporting what we don’t want is the British playing with a straight bat
and we find some that are not’.
Parliament to direct provisions to UK companies and show a
strong hand to the international community, it is equally
important that it does not suffocate activity in markets where
those companies come up against international competitors.”
Discuss the extent to which the Bribery Act 2010 has balanced the two
objectives identified by Michaelson and Berkeley in this extract.
As a member country of the Organisation for Economic Co-operation and
Development, the UK ratified the OECD Anti-Bribery Convention and in
principle agreed to meet the standards set. Despite this, the UK was
unsuccessful in fulfilling its obligations and this resulted in a ‘turning
point’ whereby the Bribery Act 2010 was implemented. The Act’s
predecessors were crucial factors owing to the implementation as they
were considered ‘inconsistent, anachronistic and inadequate’. This Act
codifies the law and quietens the criticism of the UK for ‘lagging behind
international competitors’. It is noteworthy that the phrase on the lips of
so many commentators is ‘level playing field’ which ‘works both ways’.
Thus, this essay’s aim is to succinctly examine the extent to which the Act
has brought the UK ‘into line with international norms on anti-corruption
legislation’. However, it is also argued that the Act may be
disadvantageous for UK businesses as stricter obligations are imposed
compared to their foreign competitors. It is intended to take the two latter
objectives and analyse the degree to which the Act has balanced them.
There have been arguments against the ‘delay’ in implementation of the
Act and these provide strong bases for establishing a ‘strong hand to the
international community’. The OECD’s Working Group on Bribery opined
that it was ‘very disappointed . . . [in] the further delay’; proceeding to
affirm that ‘establishing a level playing field for international business . . .
will help strengthen the global economic recovery’. The OECD’s dismay at
the delay was clear when they claimed that they would ‘threaten to
blacklist British companies’ should they remain ‘under-regulated’. The
OECD urged the United Kingdom to implement the Act ‘as a matter of high
priority’ whilst Transparency International claimed that the delay ‘raised
serious doubts about the credibility of the government’s commitment to
the Bribery Act’. Thus, it is widely accepted that the Act was critical in
bringing the UK into line with OECD member states on anti-bribery.
The USA has ‘been at the forefront of prosecuting international
bribery’ and thus far ‘has been [the] predominant force in setting
compliance standards for international businesses’. The FCPA was
regarded, until the OECD Anti-Bribery Convention, as the only ‘explicit
extraterritorial anti-bribery law’. However, it can be seen that the UK
Bribery Act has ‘raised the bar’; and in doing so has shown ‘a strong hand
to the international community’. The government define the Act as a
, ‘modern and consolidated bribery law’ that superseded the ‘current law
[that was] riddled with uncertainty and in need of rationalisation’. Despite
this, it remains to be seen whether the Act will ‘provide a better
framework for the successful prosecution of bribery and corruption
offences in the globalised industrial economy’.
It has been shown that the preceding laws did not comprise the common
law offence of bribery and were ‘outdated, unclear and lacking in scope’.
These laws would not be capable of allowing the UK to fulfil their
international obligations under the 1997 Anti-Bribery Convention. Bribery
is described as being ‘in its very nature insidious’ that has ‘potentially
devastating consequences’. With this in mind, many commentators
illustrate the importance of the Act ‘to deal with bribery much more
effectively’. It is argued that the old laws were lacking in scope because of
their inability to apply to overseas subsidiaries; thus, they could not
achieve the standards set by the OECD.
Looking at the FCPA in more depth, and comparatively analysing it, allows
the extent to which the Act has ‘shown a strong hand to the international
community’ to be examined. The 1906 legislation did not refer to foreign
public officials and the Bribery Act sought to amend this. In doing so, this
fulfils the standards set out by the OECD regarding anti-bribery. Both the
FCPA and the Act forbid the bribery of foreign public officials and provide
evidence to suggest that the two Acts are similar in effect. The prohibited
conduct in relation to the two Acts is similar: the FCPA’s wording suggests
that it is irrelevant whether the bribe is ‘voluntarily offered or was
suggested or demanded by an official’. The Bribery Act parallels the
FCPA by including ‘an advantage [that] benefits the official at his request
or with his ‘acquiescence’. Despite the fact that there are discrepancies in
the language, there is evidence to suggest that the UK has succeeded in
its attempt to move into line with ‘international norms on anti-corruption
legislation’. Further to this, it is argued that because the definition is so
broad, in both Acts, it could cover those who do not appear to be foreign
public officials. The ‘stand-alone offence’ per section 6 puts the UK legal
framework in general congruence with the OECD Anti-Bribery Convention
as well as the US FCPA’.
Given that the UK has been under scrutiny to bring itself into line with
anti-bribery norms, there has been strong criticism against the Act as it is
extremely onerous on UK businesses; thus, stifling their opportunity in the
international community. It has been argued that the Act is ‘more
restrictive than [the FCPA]’ and ‘provides the UK with some of the most
draconian and far-reaching anti-corruption legislation in the world’. In a
report by Parliament, it was clarified that this would ‘prejudice the
international competitiveness of UK businesses. The importance of this
was exemplified by Frost when he commented: ‘in a cut and thrust world
of exporting what we don’t want is the British playing with a straight bat
and we find some that are not’.
