Foreign Anti-Bribery Laws: A Comparison of USA and UK

This article provides a comparison between the Foreign Corrupt Practices Act (FCPA) of the USA and the UK Bribery Act 2010. It discusses the definition of bribery, offenses and provisions, judicial territory application, penalties, and scope. It also explores the challenges faced by companies in complying with both statutes and suggests best practices for compliance. Additionally, it explains the concept of the rule of law and its importance in anti-corruption initiatives.

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Part A
It is not legal to offer, promise, agree, request, or accept bribes by the businesses, politicians, and
others while performing their duties. As the name implies Anti-bribery Laws prevent the issue of
a bribe in society. Bribery has many negative impacts on businesses, societies, and people and
therefore the anti-bribery laws are required to be there. Different nations have different laws on
this topic. In the presented report focus will be made on the anti-bribery law of USA and UK.
The Foreign Corrupt Practices Act of 1977 (FCPA) is the lead act of the USA, which addresses
the issue of Bribery in the nation. On the other side, the UK Bribery Act 2010 (The BA 2010)
controls the level of bribe and related activities in the UK and ensures fair practices in business.
In the following discussion, the comparison between two of the mentioned acts will be done. In
addition to this company’s best practices related to the adoption of both of these legislations will
also be discussed.
Difference between Compare the Foreign Corrupt Practices Act, 1977 (US) and UK Bribery Act,
2010:-
Definition of Bribe
1. The FCPA restrict the payment of gifts or “anything of value” which can influence the
foreign officials. The definition of the term “anything of value” is not defined under the
act.
2. Under the BA 2010, any financial or other advantage consider as a bribe (Hunter, 2011).
A general overview of offenses and provisions
1. The BA 2010 is applicable to all the businesses incorporated in the UK. It includes the
following four major offenses:-

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 Accepting of soliciting a bribe
 Offering bribe to a foreign public official
 Bribing another person and,
 For a business failing to prevent bribery
2. The FCPA is known for two main provisions, one that is related to bribery of foreign
officials and another one is concerned of accounting transparency requirement under the
Securities Exchange Act of 1934.
Judicial Territory Application
1. The BA 2010 applies to the incidents of bribery committed by businesses anywhere in the
globe. Consequently, this act has an extraterritorial effect. Foreign business, which trades
in UK and UK businesses which trade abroad, has to comply with the provisions of this
act.
2. The provisions of FCPA can apply to forbidden conduct anywhere around the globe and
extends to publicly traded companies and their agents, officers, employees directors, and
stockholders. Here this is necessary to state that the provisions of this act are also
applicable to all the foreign person and firms that do any act in the furtherance of a
corrupt payment while working in the US.
Penalties
1. In case of any breach with the provisions of the BA 2010, an individual may be liable for
limitless fines and imprisonment of up to 10 years. In cases of companies, the same may be
held liable for unlimited fines and may be restricted by taking part in public procurement
exercises in the UK. Directors of the company may be liable to leave their office for 2-15
years.

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2. People and companies that breach the provisions related to the FCPA may have to return
their ill-gotten profits and gains in addition to substantial civil penalties and prejudgment
interest.
Scope
Bribery Act is more robust than FCPA and is considered broader than FCPA. The BA Act 2010
is beyond FCPA is many aspects. In other words, this can be stated that the scope of the BA
2010 is broader than FCPA (Duncan, Fava and Kakati, 2010).
Can a company be subject to both statutes
The Bribery Act is more far-reaching than compared to FCPA as a result of its extraterritorial
application under which an offence under the Act did not have to take place in the UK. It means
that this act applies to all UK and non-UK companies that operate in the UK, that have an office
in the UK or employ a UK resident (Spahn, 2013). The companies which have a UK presence
comes within the scope of the Bribery Act; therefore, the US companies that have set up an
office in the UK, or who have employed UK citizens have to amend their current corruption
policies in order to make sure that they comply with the guidelines given under the Bribery Act.
One of the key challenges faced by companies while complying with both statutes is that they
have to take into consideration the provisions of both laws and incorporate them into their
corruption policies in order to avoid legal consequences. Another issue is related with the status
of facilitation payments by the US companies because the definition of facilitation payments are
covered as a common practice under the FCPA which is not the case with the Bribery Act that
can be constituted as bribery (Gallaher Maurer and Emmett Maurer, 2013).

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Organisations are required to take proactive measures in order to ensure that they did not face
challenges while managing their business in both jurisdictions. The companies can adopt a best
policy to ensure that they did not face challenges relating to compliance with the provisions of
the Bribery Act and FCPA (Crites, 2012). In this policy, they should focus on providing
compliance training for key personnel and also create a compliance checklist to avoid violations.
Organisations should establish a relationship with government agencies and utilise the
experience of local agents/suppliers. They should put effective control measures with associated
personnel and agents, and they should also clarify before the start of the relationship. The
companies should also focus on in-depth due diligence on potential acquisitions and investments
to protect them from losses that arise due to violation of corruption regulations (Sikka and
Lehman, 2015). These policies can assist companies operating in both jurisdictions to make sure
that they did not face legal consequences in relation to corruption.

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Part B
The rule of law is referred as one of the most fundamental principles of the unwritten
constitution of the UK which provides that the law should apply equally to all rulers and ruled
alike. The rule of law is referred to the principle which provides that regulations should apply to
all conduct and behaviour of all people which include public and private individuals (Raz, 2017).
The sub principle of this law is that no one is above the law and everyone is equal before the law
irrespective of their social or financial status. This is a universal principle which is followed by
most countries. There are specific factors which must be present in order to apply to ensure that
the rule of law is applied. No one should be considered above the law, and people should be
treated equally before the law. The law should always be applied in order to resolve the dispute
of parties, and the punishment should be given as per the law. The judge should be independent
in order to avoid biases in the decision. This is not a culturally specific principle rather it focuses
on providing good governance policies which ensure equity and fairness in society (Radin,
2017).
The principle of ‘the rule of law’ is different from the ‘rule by law’. The rule by law is referred
to the legislative authority present in a country, and it provides that such body’s decisions are
constituted as the highest level of hierarchy in the legal system of the country except for its
constitution (Carothers, 2013). On the other hand, the rule of law is referred to the idea that has
laid the foundation of liberal democracies in which equality of Executive, Legislative and
Judiciary branches along with general public before the law is considered as valid. In relation to
anti-corruption initiatives, the difference between the rule of law and rule by law plays a major
rule. Since the countries are ruled by law, it becomes easier for people who are in power to

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misuse their powers and engage in corrupt activities (Raz, 2017). However, the rule of law
provides that they are equal before the law irrespective of their position or social status which
enables the court to punish them for their actions which resulted in reducing the number of
corrupt activities in the country.

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References
Bribery Act 2010
Carothers, T., 2013. Rule-of-law temptations. In Global Perspectives on the Rule of Law (pp. 33-
43). Abingdon: Routledge.
Crites, D.M., 2012. The Foreign Corrupt Practices Act at Thirty-Five: A Practitioner's
Guide. Ohio St. LJ, 73, p.1049.
Duncan, M., Fava, P. and Kakati, S. (2010) A Comparison of the U.S. Foreign Corrupt Practices
Act and the U.K. Bribery Act. [online] Available from:
https://www.paulhastings.com/publications-items/details/?id=4041de69-2334-6428-811c-
ff00004cbded [Accessed on 15/04/19]
Foreign Corrupt Practices Act of 1977 (FCPA)
Gallaher Maurer, V. and Emmett Maurer, R., 2013. Uncharted boundaries of the US foreign
corrupt practices act. Journal of Financial Crime, 20(4), pp.355-364.
Hunter, S.G., 2011. A Comparative Analysis of the Foreign Corrupt Practices Act and the UK
Bribery Act, and the Practical Implications of Both on International Business. ILSA J. Int'l &
Comp. L., 18, p.89. Spahn, E.K., 2013. Implementing global anti-bribery norms: from the foreign corrupt
practices act to the OECD anti-bribery convention to the UN convention against corruption. Ind. Int'l &
Comp. L. Rev., 23, p.1.
Radin, M.J., 2017. Reconsidering the rule of law. In The Rule of Law and the Separation of
Powers (pp. 37-76). Abingdon: Routledge.

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Raz, J., 2017. The rule of law and its virtue. In The Rule of Law and the Separation of
Powers (pp. 77-94). Abingdon: Routledge.
Sikka, P. and Lehman, G., 2015. The supply-side of corruption and limits to preventing
corruption within government procurement and constructing ethical subjects. Critical
Perspectives on Accounting, 28, pp.62-70.