1. The UK Bribery Act 2010: Is Your Business Ready? Michael Volkov Partner (202) 263-3288 mvolkov@mayerbrown.com February 2011

2. Overview Background Political Considerations FCPA V. Bribery Act 2010 Practical Guidance Overview of the Bribery Act UK Enforcement Authorities and Challenges 2

3. Background The Act has been described by The Wall Street Journal as a “…caffeinated sibling of the Foreign Corrupt Practices Act…” Prior to the Act, international community criticized UK bribery laws and enforcement efforts Bribery Act received Royal Assent in April 2010 -- The Act will replace all existing bribery laws and the effective date has been delayed past April 2011 -- The Act will not be applied retrospectively, so existing anti-bribery laws will still be relevant

4. Political Considerations UK prosecutors have stated they intend to aggressively enforce the Act against UK and global companies, especially given broad jurisdictional reach of the Act Business community has raised significant objections to economic impact of UK aggressive enforcement UK government has initiated “review” of Bribery Act but no significant changes are expected given UK’s poor standing historically on prosecuting bribery cases Guidance on “adequate procedures” definition was supposed to be finalized by end of January 2011, three months in advance of effective date, but was delayed again on Monday 4

5. Political Considerations (Cont.) The delay in the effective date from April 2011 is not expected to be very long but 3-month lead time between guidance and effective date will be maintained Government will issue guidance on the Act Guidance on “adequate procedures” is expected soon Ministry of Justice intends to issue guidance on the Act itself not just 'adequate procedures‘ The Serious Fraud Office (SFO) and the Crown Prosecution Service plan to issue guidance to prosecutors as to how the Act is to be enforced. 5

6. FCPA Versus Bribery Act:Key Similarities Both cover payment of money or anything of value (Bribery Act – “financial or other advantage”) Definition of “person associated” (which applies only to failure of organization to prevent bribery) is broad and covers direct and indirect bribes made through third party agents, distributors, consultants and other others Broad jurisdictional reach 6

7. FCPA Versus Bribery Act:Key Differences Public and private bribery is covered by Bribery Act No requirement for corrupt intent in Bribery Act (for bribery of foreign official it is “intention to influence” official in the performance of his/her functions) No facilitation exception for “grease payment” Corporate offense for failing to prevent bribery and “adequate procedures” defense Potential punishment is greater: 10 years imprisonment versus 5 for FCPA; Unlimited fines for Bribery Act. Sentencing Guidelines will be issued on this issue. Absence of non-prosecution or deferred prosecution agreements 7

8. What Does it Mean for My Business? The Bottom Line: Proactive Compliance is a MUST You want to avoid being the “guinea pig” for SFO enforcement Companies “doing business” in the UK need to design and implement compliance programs which meet the FCPA and Bribery Act Bribery Act is more stringent than FCPA on some issues Existing compliance programs will have to be modified to meet Bribery Act requirements Updated training and guidance should be prepared in advance and modified as developments warrant Enforcement and interpretation of Bribery Act will be dynamic and require companies to keep up with requirements 8

10. Prosecutors are likely to focus initially on those “egregious” cases where UK connection is clear and corrupt conduct is indisputable

11. UK courts may also take active role to interpret Act to limit application

12. UK prosecutors will have to balance strong enforcement statements against political pushback – not clear how this balance will play out

13. As in the US, consequences for global companies can be significant if convicted of bribery violations

15. A discrete offense of bribing a foreign public official

17. Two General Bribery Offenses Person who offers, promises or gives a bribe No requirement to prove corrupt intent, only intention to induce person to act improperly or reward improper performance Person who requests, agrees to receive or accepts a bribe. In some situations not necessary for person being bribed to know that he/she is ”improper[ly] perform[ing] function.” It is irrelevant whether the bribe flows through an intermediary or whether the bribe actually is given or accepted 12

18. Bribing a Foreign Public Official No intention to induce improper performance is required; no dishonesty or criminal impropriety need be established All that is required is an intent to “influence” the official in the performance of his/her official functions to obtain/retain business or a business advantage A foreign public official includes: a person holding a legislative, administrative or judicial post (whether appointed or elected) in a country or territory outside the United Kingdom; a person who exercises a public function on behalf of a country or territory outside the United Kingdom or for a public agency or public enterprise of that country or territory and a person who is an agent or official of a public international organization. No exception for small facilitation (or “grease”) payments 13

19. Jurisdictional Reach Bribing, being bribed, bribing a foreign public official If the conduct element of these bribery offenses take place in the UK, the UK courts will have jurisdiction UK nationals, those ordinarily resident in the UK and companies or partnerships incorporated or formed in the UK who commit acts of bribery abroad are subject to prosecution in the UK even if no part of the bribery offence takes place in the UK 14

20. Failure of a Commercial Organization to Prevent Bribery Person associated with a commercial organisation bribes another intending to obtain or retain business or to obtain or retain a business advantage The Act provides a defense if the commercial organization establishes it had “adequate procedures” in place to prevent such bribery from occurring A “commercial organization” includes those companies or partnerships incorporated or formed in the United Kingdom and that carry on business in the United Kingdom or elsewhere, and those companies and partnerships incorporated or formed overseas that “carry on a business or part of a business in the UK.” The term “associated persons” includes any person who “performs services for or on behalf of the relevant commercial organisation” – and may include subsidiaries, employees, agents, JV partners, consortium members The bribery may occur anywhere in the world – a conviction for bribery in the local jurisdiction is not required 15

21. Failure of a Commercial Organization to Prevent Bribery : Jurisdictional Reach Business presence test could be very easily satisfied (for example, by having a UK subsidiary or branch office) and therefore this new offence should be a concern for all non-UK commercial organizations that are or may become subject to this part of the Act. The bribery by the person associated with the commercial organization may take place wholly outside the United Kingdom and it is irrelevant whether the commercial organization is aware or has any knowledge of it. 16

22. Extraterritorial Reach of UK Anti-Bribery Act Richard Alderman, the current Director of the Serious Fraud Office, recently stated: “For the first time, non-UK companies will be brought within the jurisdiction of the SFO if they have some business presence in the UK. What this will mean is that a foreign corporate which is involved in corruption anywhere in the world will be within the SFO’s jurisdiction if it has a business presence here even if the corruption has no connection with that business presence. This is a very important provision for us. I believe that foreign corporates are waking up to the significance of this.” 17

23. “Adequate Procedures” Defense Act requires UK government to issue guidance on what constitutes “adequate procedures” Draft guidance issued in September 2010 - principles-based and does not prescribe specific procedures Six management principles: risk assessment top-level commitment, due diligence, clear, practical and accessible policies and procedures, effective implementation, and monitoring and review. Guidance due to be finalized and published soon 18

24. Penalties for the New Bribery Offenses Individuals who are convicted may face up to 10 years imprisonment and/or an unlimited fine. Companies face an unlimited fine. On a conviction, prosecutors may obtain a criminal confiscation order to disgorge benefits, i.e. the value of any business obtained or retained by a bribe and will not be limited to net profits or value of bribe (Proceeds of Crime Act 2002) UK does not allow non-prosecution or deferred prosecution agreements (closest equivalent are civil recovery orders) 19

25. Collateral Consequences of Violation Director disqualification may prohibit a person acting as a director or shadow director of any UK company for up to 15 years EU Public Sector Procurement Directive 2004 – conviction for a corruption offense will result in automatic debarment from EU public sector contracts Bribery can amount to “criminal conduct” for money laundering and property derived from such conduct may constitute “proceeds of crime” Regulatory/disciplinary action; Reputational damage Risk of legal action by shareholders and/or competitors 20

26. Senior Officers’ Liability Senior officer at company may be liable for three general bribery offenses if he /she “consented or connived” in the commission of that offense “Senior Officer” = director, secretary, manager, partner or someone purporting to act in that capacity If the conduct occurs outside the UK, the “Senior Officer” must have a “close connection” to the UK (e.g. British citizen, a person with British citizen rights who is ordinarily resident in the UK) “Consented or connived” require some awareness of the material facts. “Consent” requires some agreement to the course of action followed “Connive” requires only tacit agreement or the turning of a blind eye. 21

27. UK Enforcement Authorities The SFO has the lead role in investigating and prosecuting cases of serious or complex fraud – it is the UK’s principal enforcement agency for overseas bribery The City of London Police Overseas Anti-Corruption Unit (est. 2007) – will investigate cases of overseas bribery which the SFO determines do not meet threshold for SFO investigation Only the SFO and the Crown Prosecution Service are authorized to prosecute offences of bribery Serious Organised Crime Agency – investigates money laundering offenses 22

28. Serious Fraud Office’s Enforcement Approach The SFO has made overseas corruption offences a priority and encourages self-reporting SFO goal is to settle self-reported cases with civil penalties assuming no involvement of high-level officers or board members SFO and company agree in advance on scope of internal investigation. Corporation bears the expense of internal investigation. SFO reviews internal investigation outcome and the SFO determines with negotiations what sanction is appropriate (civil v. criminal and amount) 23

29. Self-Reporting Benefits May face only civil fines rather than criminal sanctions Greater ability to control scope of internal investigation Manage issues and publicity Perceived as responsible corporate actor Can avoid EU mandatory debarment provisions and other collateral consequences so long as not convicted of a corruption offense 24

30. Risks of Deciding Not to Self-Report SFO may learn of conduct from another agency (UK, US, World Bank or others), suspicious activity report (SAR), whistleblower, or competitor SFO will be more likely to conduct aggressive investigation and prosecution leading to criminal sanctions Potential criminal penalties for individuals, including imprisonment Will not receive any “discount” for self-reporting SFO has considerable investigative powers at its disposal (e.g. Criminal Justice Act 1987; Regulation of Investigatory Powers Act 2000) An SFO investigation is lengthy and costly and involves considerable publicity and disruption to the business 25

31. Challenges Facing Enforcement Writing on a clean slate in this political environment can be difficult How should they exercise discretion? What penalties will they seek? How will SFO coordinate with other jurisdictions? What about joint dispositions? In BAE, Justice and SFO reached joint disposition with BAE but resolution had bumpy ride in UK courts where deal was criticized for intruding on judicial discretion How will prosecutors and courts deal with whistleblowers who come forward and report criminal activity? How should the prosecution approach asset forfeiture when a corporation has obtained a business advantage as a result of corruption? How should current guidelines on plea discussions be interpreted when it comes to joint submissions (plea agreement) on sentencing? Courts have criticized joint agreement as intruding on judicial discretion to impose penalty (Innospec Limited (March 2010) and Dougall (April 2010). 26

32. The UK Bribery Act 2010: Is Your Business Ready? Uncovering Connections: The Optimal 3rdParty Due Diligence Checklist Ryan Morgan FCPA Specialist (877) 258-1877 x 262 ryanm@worldcompliance.com January 2011

33. Cornerstone of your anticorruption program…. Why is Due Diligence so important to your Anti Corruption Program? First line of defense Important mechanism for measuring effectiveness Only part of your program that protects you continuously You can’t circumvent a solid due diligence program 28

35. Verification confirms they are “who we thought they were”

36. Works well in 10 Countries, other places…

37. “Who they are” is just half the pieWilliam Kelleher - Reseller in Ireland CarraignabhFear Cork City, Ireland DOB 1/15/1972 29

39. 3rd party is not being investigated for corruption (or fraud, or money laundering, etc.)William Kelleher Billy Kelleher President, XYZ FO Mstr. of State ,Trade and Commerce CarraignabhFear 1st Street Cork City, Ireland Dublin, Ireland DOB 1/15/1960 DOB 1/20/1968 30

41. Non centralized vetting process

42. Lack of ongoing due diligence process

43. Lack of information on partner31

44. Shotgun Approach New relationships engaged 2/3/11 $ $ $ $ $ $ 32

45. Shotgun Approach Vetting done based on Geography or perceived risk $ M L $ $ L $ M $ H $ L 33

46. Shotgun Approach New relationships engaged 2/3/11 Risk rated, vetted 3/3/11 Low Risk Hits – 2 Days $ $ Medium Risk Hits – 2 Weeks $ $ $ High Risk Hits – 1 Month $ 34

47. Systematic Approach $ $ $ $ $ $ 35

48. Systematic Approach 2 days for a majority of the hits $ $ $ $ $ $ 36

50. Important mechanism of controls

51. Only part of your program that protects you continuously37

53. Important mechanism of controls

54. Only part of your program that protects you continuously38

56. Important mechanism of controls

57. Only part of your program that protects you continuously? 39

59. Important mechanism of controls

60. Only part of your program that protects you continuously40

62. Important mechanism of controls

63. Only part of your program that protects you continuously41

64. Annual Risk Assessments January, 2011 ABC Corporation is now a reseller 2011 Initial Due Diligence Who they are/ Who they aren’t No Risk 42

65. Annual Risk Assessments January, 2011 ABC Corporation is now a reseller 2012 Annual Due Diligence 2011 Initial Due Diligence Who they are/ Who they aren’t No Risk 43

66. Time is your enemy… February, 2012 ABC Corp. is now investigated in Whereizitstan January, 2011 ABC Corporation is now a reseller 2013 Annual Due Diligence 2012 Annual Due Diligence 2011 Initial Due Diligence Who they are/ Who they aren’t No Risk 44

67. Ongoing Due Diligence January, 2011 ABC Corporation is now a reseller February, 2012 ABC Corp. is now investigated in Whereizitstan 2012 Annual Assessment Ongoing Due Diligence Who they are/ Who they aren’t …risk is detected in days of the action 2011 Initial Due Diligence Who they are/ Who they aren’t No Risk Ongoing Due Diligence goes forward indefinitely 45

68. TLI, Too Little Information You can’t prove “who they aren’t” without the proper information: WorldCompliance has 140 Foreign Officials or their contacts containing “Juan and Ramirez” Without a UI, Unique Identifier, you can waste valuable time and money proving who they are 46

69. How quickly can you deconflict a potential risky partner? Is your new consultant, Margarita Calderon, born 1957, linked to a foreign official? 47

70. Links to foreign governments may be easy… 48

71. How quickly can you deconflict a potential risky partner? Is your new consultant, Margarita Calderon born 1957 linked to a foreign official? 49

72. The UK Bribery Act 2010: Is Your Business Ready? Q&A Ryan Morgan FCPA Specialist (877) 258-1877 x 262 ryanm@worldcompliance.com Michael Volkov Partner (202) 263-3288 mvolkov@mayerbrown.com