The U.K. Bribery Act: Endless Jurisdictional Liability on Corporate Violators
Lordi, Jessica A., Case Western Reserve Journal of International Law
From ancient times, governments have prohibited bribery because of its negative implications in society and business transactions. The U.S. Foreign Corrupt Practices Act, the work of the Organization for Economic Cooperation and Development, and the United Nations Convention against Corruption have inspired the United Kingdom to revise its Bribery Act, expanding its extraterritorial provision to reach corporations with loose ties to the United Kingdom. However, the U.K. Bribery Act takes the extraterritorial arm of most bribery statutes and extends it to a harmful extreme; it may employ universal jurisdiction, an extraterritorial reach saved for the world's most egregious crimes. Even if Britain never uses the broad provision as the basis of universal jurisdiction, the Act creates a host of complex international issues including prosecuting attenuated cases. The U.K. should amend the Act to narrow its scope to match the extraterritorial reach that the Foreign Corrupt Practices Act and international conventions utilize and allow. The international community should work to prohibit bribery, but encourage each nation to do so on its own terms within its own cultural norms and appropriate boundaries.
I. INTRODUCTION II. BRIBERY'S COMPLICATED IMPACT AND THE ACTS AND CONVENTIONS THAT INFLUENCE THE EXTRATERRITORIAL PROVISION OF THE U.K. BRIBERY ACT A. The Bribery Problem B. Bribery Laws that Influenced the U.K.'s Bribery Act 1. U.S. Foreign Corrupt Practices Act 2. Organization for Economic Cooperation and Development Concerning the Bribery of Foreign Public Officials 3. U.N. Convention Against Corruption III. U.K. BRIBERY ACT'S EXTRATERRITORIAL REACH COMPONENT POSES POTENTIAL PROBLEMS A. An Overview of the Act B. Types of Extraterritoriality that the U.K. Bribery Act Could Utilize and the Resultant Problems and Complications 1. Types of extraterritoriality that the U.K. Bribery Act could employ 2. If the U.K.'s broad jurisdictional element uses universal jurisdiction, then it is inappropriate and not in line with universal jurisdiction's historical uses 3. The Act creates a possibility for prosecutors to misuse the power the Act gives them C. The World is Not a Global Village that is Conducive to Far-Reaching Extraterritorial Laws on Bribery D. The Act May Have Serious Implications on U.K. Business E. The Act Potentially Discredits International Law IV. PROPOSED SOLUTIONS TO THE PROBLEMS THAT THE ACT POSES V. CONCLUSION
Imagine an American company that produces large-scale electric generators and conducts business internationally. This company has done business periodically in the United Kingdom (U.K.) and plans future transactions with British clients. In a completely separate transaction absent any British affiliates and connection, this American company sells a generator to a German company. During the transaction, an agent of the American company bribes an agent of the German company without fraud and independent investigation. The Serious Fraud Office ("SFO") in the U.K. files suit against the American company for a bribery violation under the U.K. Bribery Act 2010. Under the Bribery Act, Britain has the expansive and unprecedented power to prosecute the American company for its violations in Germany and impose liability with serious sanctions, including prison terms of up to ten years and limitless fines. (1) The American company does not anticipate a U.K. prosecution, so the company does not prepare for liability anywhere except for in Germany. This hypothetical illustrates the potentially expansive reach of Britain's revised Bribery Act.
The U.K. Bribery Act 2010 ("Bribery Act" or "the Act") criminalizes three primary offenses: (1) paying and receiving bribes; (2) bribing foreign public officials; and (3) failing to prevent bribery. …