Análisis Competitivo del Perú

Proceedings under HSWA s37 will require proof of the following elements:

• that an offence has been committed under any of the relevant statutory provisions by a body corporate:

that the offence has been committed with the consent or connivance of or has been attributable to any neglect on the part of the accused; and

that the person accused is a director, manager, secretary or other similar officer or a person purporting to act in any such capacity, or a member of a body corporate whose affairs are managed by its members.

Consent and connivance imply both knowledge and a decision made on such knowledge. In Attorney General’s Reference (No 1 of 1995), the Court of Appeal considered that consent required that the accused knew the material facts that constituted the offence by the body corporate and had agreed to conduct its business on the basis of those facts (ignorance of the law being no defence).

In terms of bribery by commercial organisations, individuals in that commercial organisation will also be liable for prosecution, if the offence is proved to have been committed with their consent or connivance. Consent or connivance demonstrates an explicit or implicit awareness – the Law Commission report discounted careless and, in its consultation paper the same year, noted in relation to liability based on individual consent or connivance:

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In general, companies, and their officers, should not face very different standards of liability depending on which charge they face from amongst such closely related offences. A more consistent approach ought to be developed. In the present context, we do not believe it is right to impose liability on an individual respecting a fraud offence, a fraud-like offence, or a bribery offence if that individual has merely been careless. That is, in this context, a standard of liability that should be regarded as sufficient only to justify civil liability. Nothing short of proof of consent or connivance should be enough in this context to justify individual criminal liability.

2.10.2 Passive Acquiescence

Passive acquiescence – whether knowing, but doing nothing, about the conduct of an associated person or knowing that an offence may occur, but doing nothing to prevent its occurrence – is no defence, as it may be interpreted as possible consent or connivance and is likely to be seen as having awareness of circumstances and activities relating to the substantive bribery offences. In such circumstances directors or senior officers could be liable to charges.

2.10.3 Failure to Implement Adequate Procedures and Potential Civil

Liability

As well as possible prosecution under Section 7 of the Bribery Act, failure to have adequate procedures in place could make commercial organisations liable to civil claims in both domestic and overseas courts, if they are sued by NGOs and others for the consequences of corrupt activity. Article 35 of UNCAC states:

Each state party shall take such measures as may be necessary, in accordance with principles of its domestic law, to ensure that entities or persons who have suffered damage as a result of an act of corruption have the right to initiate legal proceedings against those responsible for that damage in order to obtain compensation.

2.11 Public Procurement

Learning Objective

6.2.11 Understand the potential consequences relating to public procurement that could be incurred by failing to comply with the Act

The potential consequences for failing to comply with the Act are serious for companies and relate to their ability to win future business, as well as the direct consequences, such as fines when found guilty. In addition to action from victims of corruption, Article 34 of UNCAC also states:

With due regard to the rights of third parties acquired in good faith, each state party shall take measures, in accordance with the fundamental principles of its domestic law, to address consequences of corruption. In this context, state parties may consider corruption a relevant factor in legal proceedings to annul or rescind a contract, withdraw a concession or other similar instrument or take any other remedial action.

Under the EU Public Sector Procurement Directive, a corporate conviction for bribery could result in permanent exclusion from public procurements across the EU.

At the same time, a conviction may invoke the administrative sanctions regime of a multilateral organisation such as the World Bank, which may lead to debarment. As a consequence, it will also lead to cross-debarment in accordance with the inter-multilateral agency 2010 Agreement for Mutual Enforcement of Debarment Decisions (and where ineligibility may extend to any firm or individual which the debarred firm directly or indirectly controls; and in the case of a debarred individual, ineligibility extends to any firm which the debarred individual directly or indirectly controls).

3. The Foreign Corrupt Practices Act (FCPA) (1977)

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The US Foreign Corrupt Practices Act (FCPA)

Learning Objective

6.3.1 Understand the objectives and scope of the Foreign Corrupt Practices Act (FCPA)

The Foreign Corrupt Practices Act (FCPA) is a piece of US legislation that applies to US national citizens, or anyone acting in a way that could be an offence under the Act, while resident in the US, and to any company listed on a US Stock Exchange. The Act concerns the bribery of a foreign official for: the

purpose of obtaining or retaining business for or with, or directing business to, any person. Since 1998 the

Act has also applied to: foreign firms and persons who take any act in furtherance of such a corrupt payment

while in the US. The Act applies to any individual, firm, officer, director, employee or agent of a firm and

any stockholder acting on behalf of a firm. Individuals and firms may also be penalised if they order, authorise or assist someone else to violate the anti-bribery provisions, or if they conspire to violate those provisions.

The core components are interpreted as follows:

1. Payments mean anything of value (for which there is no lower limit).

2. The law applies, even if all aspects of the authorisation, and payments, take place abroad, including by or through subsidiaries.

3. There must be intent in terms of seeking to induce the recipient, through the offer, promise or payment to misuse, or use their influence for another to misuse, their office (intent also means that there does not have to be a successful outcome).

4. Misuse includes acting in violation of their official or lawful duty, or to secure any improper advantage, to help the donor obtain or retain business.

5. The recipient should be a foreign official, a political party or party official, or a candidate for political office.

6. The bribe or intended bribe may be to secure obtaining or retaining business, which goes beyond individual contracts (for example, it can relate to tax and customs matters), and does not have to be business with the organisation of the recipient.

7. It is an offence to pay an intermediary where it is known (meaning conscious disregard and deliberate ignorance in the eyes of US law) that the payment is intended to be paid as a bribe.

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