28
Jul 2014Implications of the UK Bribery Act on Doing Business in Nigeria.
Posted by Beulah Akingbelu / in Blog, Business, Legal, Nigeria / No comments yet
The U.K. Bribery Act which came
into force on July 1, 2011 is perhaps the most far-reaching anti-
bribery law in the world with provisions that could redefine global
business practice within a short time. With its near universal juris-
diction, the Act is a significant piece of criminal legislation that
affects all corporate entities that carry on business, however limited,
in the U.K regardless of where they are incorporated and will no
doubt force a re-evaluation of how companies conduct their businesses and partnerships in order to avoid the risk of enforcement action.
The Act is especially noted for its tough provisions, unlimited juris-
diction and has already been described as the toughest anti corrup-
tion legislation in the world. The following features of the Act show
why it is imperative that it forms part of the agenda in boardrooms
across the world.
Agents or “associated per-sons” in this respect, then such a
company will not be liable for the bribe paid or received on its
behalf by its employees, agents or “associated per-sons” even if
it had no prior knowledge. What counts as adequate will depend
on the bribery risks and the na- ture, size and complexity of the
Company.
The Act defines an associated person as one “who performs
services on behalf of a Commercial Organisation”. It thus be-
comes imperative for companies that carry on a business or part
of it in the U.K. to formulate clear anti bribery policies as part
of its internal regulations to be clearly communicated to its
staff.
Corporate Hospitality
Corporate events hosted by companies for their clients or
stakeholders, although widely accepted as a normal component
of business culture may be inter-preted as a bribe and a company
may be liable under the Act where it offers hospitality, gifts
or some financial or other advantage to a foreign public offi-
cial with the intention of influ-encing the official and obtaining
or retaining businesses.
This offence relates only to the person who offers the bribe and
not the foreign public official who may be prosecuted under
Section 2 of the Act.
While the Act does not expressly forbid corporate hospitality, it
also does not draw the definitive line to show when it becomes a
bribe. Promotional expenditure aimed at marketing a corporate
organization, its products and services or to create advantageous relationships is not neces-
The Act is especially noted for its tough provisions, unlimited jurisdiction and has already been described as the toughest anti corrup-
tion legislation in the world. The following features of the Act show
why it is imperative that it forms part of the agenda in boardrooms
across the world:
Extra Territorial
Jurisdiction
The provisions of the Act are extensive, criminalizing not just brib-
ery offences occurring in the U.K or involving U.K companies, its
nationals or public officials but all forms of corporate bribery regard-
less of where the company is incorporated as long as it carries on a
business or part of a business in the U.K.
Under the Act, it is immaterial that the offence of bribery occurred
outside the U.K. or that the subject matter of the bribe had no
connection whatsoever with any U.K operation or activity. It is also
irrelevant that the bribe was not paid to a public official as the Act,
unlike the United States Foreign Corrupt Practices Act (FCPA) and
other anti corruption laws, extends the offence of bribery beyond the
scope of public officials to include bribes paid between private com-
mercial entities. A Nigerian company may therefore be prosecuted
in the U.K for violating the provisions of the Act once it carries on
a business or part of a business in the U.K.
Strict and Vicarious
Liability
What this means is that a company and its Directors will be liable for
bribes paid or received on its behalf by its agents or subsidiaries
whether or not it authorized the payment or had prior knowledge
of it. This is the corporate offence of failing to prevent bribery. The
mitigant here however is if a company can show that it had put in
place “adequate procedures” or internal anti-bribery regulations to
guide the activities of its employees.
IMPLICATIONS OF THE U.K. BRIBERY ACT ON DOING BUSINESS IN NIGERIA
Such intention may be determined by examining the nature of the
advantage offered, the manner and form in which the advan-
tage is provided and the level of influence the particular foreign
public official has over awarding business.
Bona fide hospitality and promotional or other business ex-
penditure which seeks to improve the image of a commer-
cial organisation, better to present products and services or
establish cordial relations, is recognised as an integral and
important part of doing busi ness and it does not appear to
be the intention of the Act to criminalise such behaviour. The
UK Government does not intend to use the Act to prohibit
reasonable and proportionate hospitality and promotional or
other similar business expenditure intended for these purposes.
It is, however, clear that hospitality and promotional or other similar business expenditure can and have been employed as bribes.
In order to amount to a bribe under section 6, there must be an intention for a financial or other advantage to influence the
official in his or her official role and thereby secure business or a business advantage. The standards or norms applying in a
particular sector may also be relevant in considering whether the acts carried out by the Company constitutes a bribe.
Facilitation Payments
A facilitation payment is a payment
Identify and appoint a compliance officer. This may be a law firm or a firm of auditors.
Develop an accounting system that can identifies possible infringements and informs employees of what to
do about suspicious transactions.
Introduce standard wording in contracts to confirm third
party compliance.
Ensure that employees are aware of their reporting obligations to the firm and
what actions to take if approached to make or accept a bribe.
Consider systems for due diligence on appointment of
agents/joint venture partners/intermediaries, including relevant termination
clauses.
Ensure continuous anticorruption training for those
who are in a position to make or receive a bribe on
behalf of the company.
Payment made to a public official as an inducement to perform a function which they would or should
normally carry out as part of their job. Regrettably, this has come to
be regarded as an essential part of doing business in Nigeria.
Although facilitation payments have already been abolished in the
U.K, what the Bribery Act does is to extend this abolition to companies outside the U.K who carry on some part of their businesses
within its borders. The guidance to the Act indicates that where company managers make payments to „speed up‟ the perform-
ance of a function or activity to which they are already legally entitled, they and their companies could face prosecution.
Impact on Business
The U.K. Bribery Act will have a significant impact on the activities
of local companies as well as U.K based or U.K connected companies doing business in Nigeria.
Many of the payments abolished under the Act are considered to be a part of regular business practice in Nigeria and companies will
soon face the significant problem of choosing between promoting their businesses and being prosecuted for violating the provisions
of the Act.
A potential consequence of this provisions is that given the worldwide use of facilitation payments, businesses not connected to the
U.K may enjoy a competitive advantage going forward than their U.K. connected counterparts.
What companies may wish to
consider
The following are some of the
internal procedural adjustments
which companies might want to
consider undertaking to avoid
violating the provisions of the Act:
Carry out a risk assessment to identify areas where the com-
pany is vulnerable to bribes.
Develop and codify an extensive internal anti-corruption policy.
Write/review all hospitality and promotional expenses. This
includes charitable donations, political contributions, facilita-
tion payments etc. While the reality of Climate
Change is hardly new in Lagos, as a subject of policy and potential
legislative intervention it represents an entirely novel develop-
ment. Nevertheless, given its likelihood to dominate headlines
into the foreseeable future, shape business activities and rewrite the
terms of environmental sustainability, a widening arc of stake-
holders are compelled to tak note.
Environmental Saturdays
Happily enough, there is still a chance to press the reset button
and ride on the tails of the growing, albeit slowly, Climate Change
awareness. Now in its third edition, Lagos State government has
convened an annual Climate Change summit to drive the train
of the needed intervention required to generate capacity to
reduce the State‟s vulnerability to Climate Change. With trees being
planted rapidly and long forgot ten parks being refurbished; La-
gos is trying to grow a green sheen. To the credit of the State
Government, as at press time, it has a draft policy on Climate
Change Adaptation and Mitigation strategies. Drawing inspira-
tion from both the United Nations Framework Convention on
Climate Change and the Kyoto Protocol, the draft policy docu-
ment is an ambitious wish-list of how the Lagos State government
intends to migrate beyond the monthly state-wide last Saturday
sanitation exercises and radically reorder the face of social infra-
structure and public health In broad terms, it seeks to cut
Greenhouse gas emissions in favour of cleaner alternative
sources of energy and promote sustainability.None of these
would ever be easy in an oil producing country like Nigeria.
Yet some of the challenges being
faced with mainstreaming Climate Change into concrete policy
therefore, the resort to (petrol or diesel powered) generators and
private water supply is indispensable. The resulting conse-
quence of both the topography and demographic situation of
Lagos State means that it is increasingly vulnerable to dis-
ruptions in economic activities and in particular to food sup-
ply, disease, unrelenting pressure on public infrastructure
and services, lapses in social cohesion and order among
many other signs of urban distress. The jaded Lagosian is
grudgingly reconciled to this all too familiar landscape which is
silently conflating into potentially dangerous problems for
the future.
Of the many things which Lagos, Nigeria‟s commercial capital, is
known for, being a green city is sadly not one of them. Lagos is
below sea level and prone to periodic flooding and coastal erosion.
It retains the highest population density in Nigeria and suffers from
years of bizarrely lax urban planning, massive infrastructural defi-
cits, poor waste management, a chaotic transport system and unre-
liable power supply. Yet it remains a destination of choice for many
migrants within Nigeria. As a shoreline state, concerns remain
about the rate of land reclamations and whether their lasting impact
has been thoroughly considered.
