The Adequate Procedures Defense under the UK Bribery Act: A British Idea for the Foreign Corrupt Practices Act

By Jordan, Jon | Stanford Journal of Law, Business & Finance, Fall 2012 | Go to article overview

The Adequate Procedures Defense under the UK Bribery Act: A British Idea for the Foreign Corrupt Practices Act


Jordan, Jon, Stanford Journal of Law, Business & Finance


Introduction

On July 1, 2011, the United Kingdom's new anti-bribery law, the UK Bribery Act ("Bribery Act"), came into force.1 The Bribery Act, one of the most comprehensive international laws governing both domestic and foreign bribery, has been viewed as a broader and tougher foreign anti-bribery law than its United States' counterpart, the Foreign Corrupt Practices Act ("FCPA").2 This was particularly true in the area of punishing corporations for failing to prevent bribery, a strong feature of the Bribery Act without parallel in the FCPA.3 However, the Bribery Act provides an additional safeguard unlike anything in the FCPA, an "adequate" compliance procedures defense to liability for the corporate failure to prevent bribery.4 This compliance procedures defense, available to organizations that can "prove" that they "had in place adequate procedures designed to prevent persons associated" with them from committing bribery, represented a novel development in the foreign antibribery laws.5 It also stirred up debate within the United States on whether there should be a similar defense under the FCPA.6

While the Bribery Act has drawn attention to the idea of a compliance procedures defense under the FCPA, this defense has been considered in the United States before. A compliance procedures defense was proposed during amendments to the FCPA in 1988, and more recently by notable securities practitioner James Doty in the form of a proposed regulation governing the FCPA.7 Now that the Bribery Act has refocused attention on the idea of a compliance procedures defense under the FCPA, the time is ripe for serious consideration of such a defense. I believe that the United States should adopt a compliance procedures defense for the FCPA similar to the adequate procedures defense under the Bribery Act. I believe that such a defense would be a good policy in that it would protect companies truly seeking to do the right thing in compliance with the FCPA from being held accountable for violations committed by rogue employees. I also believe that there are certain minimum procedures that should be incorporated into any FCPA compliance program for the purposes of utilizing such a defense. These procedures could be specified in guidance provided by the relevant government authorities, including the United States Department of Justice ("DOJ").

This article will explain the Bribery Act, its adequate procedures defense, and recent guidance on the defense provided by the United Kingdom. The article will then describe the FCPA and the role of compliance procedures in the sentencing phase of the statute. Previous suggestions for a compliance procedures defense to the FCPA will next be explored, including recent suggestions for a defense by the U.S. Chamber of Commerce in light of the Bribery Act. I will then give my recommendation for a compliance procedures defense to the FCPA for certain violations of the law's anti-bribery provisions. Finally, I will provide "Eleven Comandments" for an effective FCPA anti-bribery compliance program. These rules specify minimum procedures that 1 believe should be included in any FCPA compliance program for purposes of complying with the FCPA and for using a proposed compliance procedures defense.

I. The Bribery Act and its Adequate Procedures Defense for the Failure to Prevent Bribery

On April 8, 2010, the United Kingdom enacted the Bribery Act.8 The new law criminalizes the bribery of domestic and foreign government officials, commercial bribery, and receipt of a bribe.4 It also criminalizes the failure of corporations to prevent bribery.10 For purposes of this article, the discussion will focus on the Bribery Act as it applies to the bribery of foreign public officials.

A. Bribery of Foreign Public Officials

Section 6 of the Bribery Act criminalizes the bribery of foreign public officials and is the section most analogous to the relevant anti-bribery provisions under the FCPA. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Adequate Procedures Defense under the UK Bribery Act: A British Idea for the Foreign Corrupt Practices Act
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.