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The UK’s Bribery Act 2010 (‘the UK Act’) remains the gold standard of anti-corruption codes. UK lawyers will be familiar with its innovations: the targeting of commercial or private sector bribery; the absence of carve-outs for facilitation payments; the strict liability offence for corporates if anyone associated with them pays a bribe; the offence of connivance by directors; and its extraterritorial reach. Practitioners may recall the claims, when it was introduced, that UK businesses would be at a disadvantage in securing contracts overseas and Wimbledon would close down as the corporate hospitality industry shut up shop.
Many of the fears were overblown, but few common law jurisdictions have rushed to emulate the rigour of the UK Act. (An exception is Kenya which adopted a similar code in 2016.)
On 1 September 2017 Bermuda will, however, pay the UK Act the ultimate compliment when Bermuda’s Bribery Act 2016 (‘the Bermuda Act’) comes into operation, complete with statutory guidance.
The only material difference between the two statutes is the inclusion, in the Bermuda Act, of additional bribery offences. In Bermuda, but not the UK, it will be a criminal offence if public officials fail to report attempts to bribe them or suspicions about colleagues. These provisions, which are not found in the UK Act, mirror South African anti-corruption legislation. So Bermuda has not only copied the gold standard; it has arguably surpassed it.
The UK Act, to a limited degree, already applies to Bermuda. In theory the UK authorities could prosecute Bermudians under the UK Act for bribery offences committed in Bermuda or elsewhere in the UK criminal courts. The Bermuda Act brings Bermuda fully into line with the UK in terms of corruption laws, and allows it to meet OECD standards – an important point for an offshore jurisdiction.
This article was first published in The Lawyer.
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Bribery Law in Bermuda – Equivalence and Compliance