Corporate entities can be guilty of an offence of bribery under the Act. They can also be guilty of a failure to prevent bribery offences if an “associated person” carries out an act of bribery on their behalf. Unlike under the FCPA, an “associated person” is not defined by reference to the nature of the relationship with, or control exercised over, the associated person.
In the Act, an “associated person” is one which performs services on behalf of the principal. The definition of performing services is vague; the Act states that it will be determined by reference to all the relevant circumstances. It is far from clear what level of supervision by the principal would be necessary to help satisfy the adequate procedures defence in a case based on the acts of a distributor, sub-contractor or joint venture. There is, and will continue to be, much debate on this subject.
What this means is that where a company has operations carried out by another individual or entity on its behalf, even in small part, particularly in difficult jurisdictions, it is important to ensure that the third party is aware of and commits itself to the anti-bribery policies of the principal, that it is made aware of a zero tolerance culture within the organisation, and that it is subject to appropriate due diligence and monitoring.