The extraterritorial reach of the Bribery Act applies to corrupt activity in Asia (and other parts of the world) so long as the offender has a close connection to the UK, which is defined to include British citizenship, ordinary residence in the UK or incorporation under the laws of the UK. More importantly, the corporate offence applies even if the body corporate is not incorporated in the UK as long as it carries on business, or part of a business, in any part of the UK.
To illustrate, a British citizen residing in Asia and working for an Asian company who engages in acts of bribery in Asia will be criminally liable, in England, under its provisions. An international company which has manufacturing operations in Asia, and which carries out marketing activities in the UK, can also be liable under the Act if its employee were to bribe an Asian public official without its knowledge in an attempt to procure certain government approvals for the company.
Further, the Act widens the net by amending the UK Serious Crime Act 2007 making it an offence to encourage or assist the commission of the general and discrete bribery offences. It is possible, for example, for a financial institution to be criminally liable in England if it becomes aware of and facilitates the bribery carried out by its client in Asia. The burden increases when one considers the stringent reporting obligations under various anti-money laundering laws, including the UK Proceeds of Crime Act 2002, to disclose knowledge or suspicion of property which may represent the benefits of corruption.
Another area of concern is determining the appropriate level of corporate hospitality. Is it permissible to take clients out for a business lunch with a view to persuading them to engage your services? What about hosting a banquet in honour of a government official which may be lavish by UK standards but common in China? Or giving a box of mooncakes during the Mid-Autumn Festival in Hong Kong to the police officers who helped you out with security issues during your construction project?
As mentioned above, the general bribery offences are based on the improper performance test. As such, routine and inexpensive hospitality that is justifiable is unlikely to lead to a reasonable expectation (judged by the standards of a reasonable person in the UK) of improper conduct. As regards an FPO, since the improper performance test does not apply, the question whether hospitality is lavish or legitimate will be a matter of prosecutorial discretion, which may be of scant comfort to business development executives caught in a dilemma. Finally, companies operating in various parts of Asia may wish to examine the local laws which allow certain gifts or payments to be made as there is a specific carve-out under the Act for the allowances provided by such laws. Any other assertion of cultural norms or customary business practices will not suffice.