The exact nature of these laws varies from country, but any form of corrupt payment constitutes a criminal offence. Everywhere. We know we would be breaking the law, for example, if we bribed a judge to make sure that he or she decides a case in our favour. That sort of behaviour is wrong. We know it is wrong. So we don’t do it.
Some anti-corruption laws impose burdens that extend beyond national boundaries. Two are particularly relevant:
The Foreign Corrupt Practices Act (FCPA) applies to US corporations and partnerships, as well as many non-US businesses that have some connection with the US. Many of them are our clients. It criminalises corrupt acts done either by businesses themselves or by their agents - us, for example - wherever those actions take place.
Enforcement of the FCPA has been extremely topical over the past couple of years, with a massive increase in the number of entities and individuals having been prosecuted for offences committed in countries other than the US. This explains why many of our US clients have contacted our offices around the world for assurance that we do not make corrupt payments when conducting business on their behalf.
The 2010 Bribery Act imposes obligations on us as an organisation, on any agents/associates acting on our behalf and on any UK citizens in their personal capacity in four key areas worldwide.
Making corrupt payments is prohibited, whether they are designed to induce someone to perform a function improperly, to reward them for such improper performance or where the person making the payment knows that the acceptance of the payment constitutes the improper performance (section 1).
In assessing “improper performance” we can take account of what is permitted or required under local written law, but must disregard anything that is merely customary.Similarly, requesting, agreeing to receive or accepting a bribe is prohibited (section 2).
The Act also includes the offence of bribing a foreign official (section 6). This offence is designed to stop companies and individuals, and those working for them, from engaging in corrupt practices in foreign countries. There is a defence if the making and receiving of the payment is permitted under the written law of the country in question (mere custom is not sufficient).
Finally, there is a corporate offence of failing to prevent bribery (section 7). The UK Bribery Act obliges us to put in place measures that seek to ensure everyone acting on our behalf (which means all our employees worldwide and all agents/associates we instruct) knows that they should not and must not make corrupt payments. Having “adequate procedures designed to prevent” employees and associates committing acts of bribery is the only defence to us as an organisation should anyone in our network be found to have made an improper payment. It would not, of course, be a defence for the individual concerned.
The Act applies to Rouse and other UK organisations, but also to any company or partnership that “carry on business in the UK”. It can therefore catch acts carried out by, or on behalf of, many of our clients who, although they are headquartered in the US, continental Europe, Japan or elsewhere, do business in the UK. This means that actions we take as their agents anywhere in the world can create liability for them too.
We have guidelines for our staff and we always seek assurances from the associates we instruct. These guidelines fall into three categories – “corruption” generally, facilitation payments and gifts/hospitality. Please read these carefully.
Making corrupt payments is prohibited. We consider a payment to be corrupt if it is made with the intention of inducing or rewarding someone for performing his job improperly to our or our clients’ advantage.
Obvious examples are:-
paying a judge to decide a case in our favour
paying an examiner to improperly allow a trade mark or patent application through without objection
paying an employee at a bank to reveal details of a defendant’s bank account
Such payments are simply forbidden.
Facilitation payments are generally accepted to be small cash sums paid to officials to secure or expedite the performance of a routine or necessary action to which the payer has a legal entitlement.
They are permitted under the FCPA in certain circumstances – something that has helped guide our approach and that of many clients in the past.
The Bribery Act, however, takes a more restrictive position. Facilitation payments constitute bribes under section 6, which covers bribery of officials in countries other than the UK, if the payment is made with the aim of influencing an official and obtaining or retaining an advantage in the conduct of our or our clients’ business. Given the nature of facilitation payments, this is usually the case.
Facilitation payments also breach section 1 of the Bribery Act if they are intended to induce or reward someone - usually a public official - to give preferential treatment, to stop doing something they should be doing, or to perform a task improperly. The Act makes it clear that mere acceptance of a payment by a recipient amounts to “improper performance”, unless it is specifically permitted.
Even minor payments made, simply to secure the proper performance of a given task by an official, where non-payment would lead to an official acting improperly against the interests of us and our clients, are prohibited. Such payments are so small they may feel like tips rather than bribes. Prosecuting authorities in the UK have issued guidance indicating that they will act in cases where facilitation payments are made on a regular basis.
The official Guidance also recognises, however, that small facilitation payments have become customary in many parts of the world and it is therefore impossible to stop them overnight. It is regarded as a longer term objective in parts of the world where the problem is particularly relevant, and one that will require economic and social progress as well as sustained commitment and collaboration between international bodies, governments, the anti-bribery lobby, business and other organisations.”
In line with UK government guidance, we recognise that suddenly stopping small facilitation payments in those countries where they are customary, without clear and effective communication with the authorities involved, could cause serious harm to the interests of our clients and our business. While it is our policy not to make facilitation payments, therefore, we will approach their eradication in a planned and structured way. With the support of our clients and other firms in the same position, we will work with front line staff in relevant jurisdictions to put in place training, support, education materials and lobbying efforts that enable us to bring about a change in attitudes.
The law applies not only to financial payments, but also to offering or giving “other advantages”. Gifts and hospitality to clients or officials, for example, are permitted only if they are transparent, proportionate, reasonable and bona fide.
Gifts or hospitality that are excessive and leave the recipient with a sense of obligation or which influence them to treat us favourably are not permitted.
What represents "excessive” rather than “proportionate and reasonable“ can be open to interpretation, of course. But while it would be “proportionate and reasonable” for our CEO to entertain the Head of IP of a major multinational to dinner, for example, such a level of entertainment would be excessive for the clerk who receives our trade mark applications.
We provide training, guidance and materials for our staff, ask them to use common sense within the guidelines, and seek guidance from their line manager and/or country manager if in doubt.
Simply reimbursing necessary and reasonable expenses incurred by officials does not constitute a bribe or facilitation payment. But payments made for unnecessary expenses or unreasonable amounts will probably constitute facilitation payments and are therefore not allowed.
It would be reasonable to pay for a standard room in a standard hotel for a police officer who has travelled 200 miles from home to conduct a raid that didn’t finish until 2am, for example, but not for a suite in a five-star hotel or if the raid was only 10 miles from the officer’s home.
We expect our staff to exercise sensible discretion if in doubt, and seek guidance from line manager and/or country manager, who in turn should seek assistance from the Deputy CEO and/or CEO.
Wherever possible, we ask for receipts if expenses are paid. If receipts can’t be provided by officials, it is often a strong indication that the sum they are requesting as “reimbursement” is unreasonable.
The obligations set out in these guidelines are the minimum required of us to comply with the law. Some of our clients can impose even stricter standards, however, in which case we need to decide whether we can comply with such standards and to put the necessary procedures in place. This is the responsibility of our GCMs, working with local client managers and country managers.
All requests for assurances of compliance with the Bribery Act and other similar legislation must be referred to the Deputy CEO.
We contact all of the associates we instruct around the world, making them aware of our policy and asking them to confirm in writing that they will comply with it when carrying out work on our behalf. Failure to provide such a written assurance will probably result in us cutting our ties with that associate.
A consequence of this policy is that staff will not be reimbursed for making payment and/or incurring costs that fall outside what is permitted.
Staff should tell their line manager and/or country manager any time they become aware that a payment is being requested or demanded that they suspect is forbidden by our policy
If an employee suspects a colleague of having made a payment that is not permitted, they can report it directly to the Deputy CEO in the strictest confidence.
Training on our anti-bribery policy is provided to all staff and repeated or updated regularly. This forms part of the induction process for all new employees.
Appraisals take account of how employees have dealt with bribery/corruption under this policy.
Compliance with our anti-bribery policy is reviewed/audited annually.