1. U.S. Travel Act
- While the FCPA’s anti-bribery provisions may not apply in certain cases, there is still potential of a violation of the U.S. Travel Act.
- The Travel Act makes it a crime to engage in any interstate or foreign travel, or to use any mail (including email) or facility, in foreign or interstate travel, with the intent to “carry on” or “facilitate” any “unlawful activity.”
- “Unlawful activity” includes among other activities: bribery.
Example: A violation of the Travel Act would occur if a sales agent in the U.S. offered by telephone or email or pays a bribe via wire transfer to his/her foreign counterpart to influence his/her agreement to a transaction. The sales agent could be a U.S. sales person or agent, or a non-U.S. sales person or agent working or traveling through the U.S.
2. U.K. Bribery Act
a. Four Main Offenses
- Giving, promising, or offering a bribe
- Requesting, agreeing to receive, or accepting a bribe
- Bribing foreign public officials
- Corporate offense: failing to prevent bribery by an associated person
- “Adequate procedures” defence: company had “adequate procedures” in place to prevent “persons associated” with the company from engaging in illicit conduc
b. U.K. Bribery Act is Broader than the FCPA
- Criminalizes public and commercial/private bribery (i.e., private to private)
- This means offering or promising a bribe or kick-back to anyone is prohibited.
- This also means agreeing to receive or accepting a bribe, or kick-back from anyone is prohibited.
- Makes companies liable for failing to prevent bribery by a person associated with the company – however, companies may invoke the “adequate procedures” defense
- No facilitating payments exception or affirmative defense for promotional expenses
- No need for corrupt intent (simply offering, making or receiving a bribe is enough)
- Expansive jurisdictional reach based on a company’s U.K. presence
- Potentially significant penalties, including unlimited fines and 10-year prison sentences