Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “This shows an interesting strategy in its fight to stamp out bribery. Despite the bribes having taken place in another country, this still fell within the SFO’s remit. Innocent people should still do their due diligence on the foreign businesses in which they invest, and they should try to make sure that the business is conducted properly. Otherwise, they can face clawback for dividends paid out to them despite not being at fault or having any knowledge of the issue.”

There is the thorny issue of facilitation payments – payments made to officials to speed up processes, for example to get an export licence through quicker.  Lots of business are asked to pay these, but what should you do, as the Bribery Act makes it clear that you should not pay them?

Corporate hopitality – can you take clients to Lords or out to lunch?  Can you send them a client to say “thank you”?  One interesting question that came up yesterday was whether you can take away the personal partners or families of the people you want to impress?

But a big thank you must go to Lord Triesman and the Sunday Times.  Thank you for providing a very live case study about alleged corruption by certain members of football’s international governing body, FIFA.   Can the Bribery Act catch them if they have done anything wrong?  Would accepting a gift that is for a charity or a “good local cause that helps the community” rather than the member of the committee’s back pocket amount to a bribe?  And what is the story with Qatar’s bid, because according to Transparency International Qatar is deemed to be a less corrupt place than the UK, as can be seen here: http://www.transparency.org/policy_research/surveys_indices/cpi/2010/results?  Should England have played ball to have won the right to host the 2018 World Cup?  Or should England be keen to be the winner of the more humble fair play award?

In your own business, can you afford not to play keepy uppy with what your competitors are doing?  Or can you afford not to play ball with the requirements of the new Bribery Act?  Do you play a gung ho formation and just go for it, or play it with a solid defence?

These are the dilemmas facing businesses.  But there are very serious issues at stake and businesses can’t afford to bury their heads in the sand.  To continue the sporting analogy, you might want to make your own luck, and speak to us to find out more what tactics to pursue.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, is currently giving advice on the Act.  He is pleased with what is contained within the revised guidance. He says, “There had been a lot of concern amongst law-abiding business that the Act would be so onerous that they would be caught out and risked prosecution. However, what is clear is that they are not the target, and the Government is trying to ensure fair play. Reasonable and proportionate corporate hospitality, such as tickets to sporting events and dinners, can continue as a recognition that this is just about building normal business relations, unless it is a cover for bribery.

“Also, although businesses will be liable for anything done on their behalf unless they have good policies in place, the Government has helpfully clarified that the  type and extent of policies and risk assessments will depend upon the size and risks faced (such as which markets they are in). It is also clear, though, that businesses cannot turn a blind eye if there are genuine risks. This is a common sense approach to the implementation of what could have been a despised piece of legislation that could have hampered genuine business. “

Paul adds a word of caution. “The new guidance does, however, still make clear that facilitation payments are outlawed. Facilitation payments – sweeteners to encourage public officials to loosen red tape and allow their products to enter a market – are seen as a fact of life for businesses that export into some markets, whether or not the business wants to pay them. Concerns remain that this may still leave UK businesses at a competitive disadvantage when trying to win business overseas if businesses from other countries continue to pay facilitation payments.”

The Commission has just updated the rules and data export contract terms that apply when a European data controller transfers data to a data processor that is not based in the EEA. A ‘data controller’ is someone who decides and controls what happens to personal data, and a ‘data processor’ is someone who processes personal data on behalf of a data controller but does not take decisions in relation to the personal data and is not ultimately responsible for that data. The new rules allow for the data processor to sub-contract the processing of the data to sub-processors under certain conditions, including by obtaining the prior written consent of the data controller that is exporting the data out of the EEA. The development is aimed at keeping pace with the way business is done, and in particular different levels of outsourcing in a chain.

Separate contract terms continue to exist in relation to transfers of data from data controllers within the EEA to data controllers outside of the EEA. They are unaffected by the updated contract terms in data controller to data processor situations.