4.7 Implementation Barriers*
*Although there are many practical problems and barriers to the UK Bribery Act, a starting point has to be made (similar legislation has been in force in the US for many years and does not appear to have hindered competitiveness in the US). Interestingly, the Act requires foreign entities with UK business interests to apply bribery prevention procedures even though there may not be similar provisions in that entity's jurisdiction. It also makes life interesting for their auditors.
4.7.1 Corporate Hospitality
The largest outcry from businesses in the UK on the implementation of the UK Bribery Act was the concern that most corporate hospitality could be considered bribes. Would taking potential customers to the men's final at Wimbledon be considered a bribe? Provided the hospitality is proportionate and reasonable given the nature of the business concerned, the Act is highly unlikely to be engaged.
Consideration would be given to the level of expenditure, how it was provided and the level of influence of the recipient.
The giving and accepting of gifts is, in many cultures, necessary business etiquette. As with hospitality, the proportionality, reasonableness and expectation of the gift will be considered. Where it is clearly extravagant and out of proportion to the business being transacted, the Act will be engaged.
4.7.3 Facilitation Payments
In many business cultures, facilitation payments are part and parcel of doing business—it is "the way we do things around here". Not to provide such payments can have a serious effect on an organisation's ability to carry out its business in that jurisdiction.
If the payment is required by local law or relates to a legal fast-track service, it is not a facilitation payment. Payments (in money or kind) made to induce officials to perform routine functions they are otherwise obligated to carry out (or to do so faster without an official fast-track route) are bribes.*
*In the US, the equivalent law does not make facilitation payments illegal, which many UK businesses believe gives US companies a distinct advantage.