Commercial analysis: Did bribery by an intermediary and a corrupt manager extend to the wider relationship between the parties, and was there an agency arrangement? Anna Myrvang, legal director at Clyde & Co LLP, looks at the majority decision of the Court of Appeal in UBS AG (London Branch) and another v Kommunale Wasserwerke Leipzig.

1 Introduction 1.1 We have performed an organisation-wide assessment of the areas where we are most at risk of either offering or accepting bribes. 1.2 We have identified the following major types or areas of risk that we face: 1.2.1 the geographical areas in which we operate; 1.2.2 the sectors in which we operate; 1.2.3 operational risk. 2 Geographical risk assessment 2.1 We [do not] have overseas operations [in the following jurisdictions: [insert details]]. 2.2 We have due diligence processes in place where: 2.2.1 we [have customers based AND/OR trade AND/OR are instructed by customers based] overseas; 2.2.2 a politically exposed person is involved in a [matter OR transaction]; 2.2.3 we have an intermediary relationship with a third party based in a country with high levels of corruption. 3 Sector

This Practice Note considers civil claims for bribery, either at common law (tort claim) or in equity. It: • identifies what a bribe or secret (or half-secret) commission is • explains bribery as a claim in equity • explains bribery as a common law claim in tort • considers the role of consent and informed knowledge • identifies the different available remedies • identifies related and supporting claims As discussed below, fiduciaries and their duties form a constituent element of a civil bribery claim, irrespective of whether the claim is pursued in tort or equity. For general guidance on fiduciaries, see Practice Notes: • Fiduciary Duties • Fiduciary duties—remedies for breach What is a bribe under civil law? Bribery is most commonly understood in the scenario where B (being the agent of principal, A) accepts the payment of money from C (the briber), which B does not disclose to A, in order that B then persuades or influences A as regards its dealings with C. See illustration: Bribery

1 Assemble a bribery incident team Assemble a bribery incident team, including your head of legal/compliance, nominated officer, risk manager, anti-bribery and corruption (ABC) officer (if you have one) and head of HR. Appoint someone to lead the team. 2 Consider evidence preservation Take immediate steps to preserve relevant documents, communications, financial records, approval records, due diligence materials, contracts and other evidence. Consider whether access to relevant systems, records or transaction data should be secured. Consider the preservation of legal professional privilege (LPP) and document control. 3 Consider reporting obligations Consider the preservation of LPP and document control

Bribery laws • means the Bribery Act 2010[ and associated guidance published by the Secretary of

means the Bribery Act 2010[ and associated guidance published by the Secretary of State for Justice under the Bribery Act 2010][ and all other applicable UK legislation, statutory instruments and regulations in relation to bribery or corruption][ and any similar or equivalent legislation in any other relevant jurisdiction [specify]];

Bribery of a foreign public official means offering, promising or giving of any financial or other advantage (whether directly or through a third party) to a foreign public official or someone else at the official’s request or with their assent or acquiescence, where the official is neither permitted nor required by their own written law to be influenced in their capacity as an official by the offer, promise or gift. 'Gift' in this context means the giving of an advantage; it has no special relevance to corporate hospitality. Bribery of a foreign public official is an offence if the person bribing intends to: • influence the official in their capacity as such, and • obtain or retain business or an advantage in the conduct of business (including a trade or profession) Importantly, under the BA 2010 s 6, there is no requirement for the public official to have acted improperly.

Bribery prevention procedures should be informed by the Ministry of Justice’s (MoJ) six principles: • proportionate procedures • top-level commitment • risk assessment • due diligence • communication, including training • monitoring and review ABC procedures • has your organisation established a clearly defined anti bribery and corruption (ABC) compliance programme which is proportionate to the size of your organisation, the nature and complexity of your business and the type and nature of persons associated with your organisation and the business it undertakes? A compliance programme includes internal systems and procedures to ensure that the company and its employees comply with legal requirements, internal policies and procedures. Any programme must be appropriate for the field in which the company operates, proportionate, risk-based and regularly reviewed. For more information, see Practice Note: Summary of SFO's guidance and policies—SFO guidance on evaluating compliance programmes • is the organisation’s compliance programme supported by a clear and well understood code of ethics? This code of ethics should reflect the core values of the organisation and should have Board-level approval. See Precedent: Anti-bribery and corruption—code of ethics

ARCHIVED: This Checklist has been archived and is not maintained. This is a Checklist for overseas partners on how to prevent bribery. Policies and procedures • Has the company got a clear, robust and pragmatic code of ethics which explicitly refers to a zero tolerance of bribery and corruption? • Is this code of ethics supported by proportionate policies? Is there top level commitment to these policies from the Board and does an appropriately experienced senior officer of the company oversee the anti-bribery policy? ◦ Are the anti-bribery policies and procedures a regular Board meeting agenda item for consideration? ◦ Are the details of the Board's discussions of the anti-bribery policies and procedures fully minuted? ◦ Is there a Board sub-committee with responsibility for overseeing the amendment and enforcement of the anti-bribery policies and procedures? ◦ Does the company’s General Counsel, and the legal/compliance department as a whole (where present), have specific expertise of the anti-bribery legislation and practice? If not, then (a) the company should retain external lawyers with the requisite knowledge;

Brick Court Chambers and former members of the senior judiciary have engaged with the Law Commission over the past fifteen months in the lead up to, and during, the consultation process on the review of the Arbitration Act 1996 (AA 1996), in particular on the question of the law applicable to the arbitration agreement. On 26 September they sent a Note to the Law Commission on Recommendation 19 of its Final Report on the Review of AA 1996.

Bridge finance refers to short-term financing made available until long-term financing is put in place. A bridging facility is often used where the finance is to be provided by a bond issue and is frequently not intended to be drawn at all.

A form of short-term financing that allows a company to continue running until it can arrange longer-term financing. Companies sometimes seek this because they run out of cash before they receive long-term funding; sometimes they do so to strengthen their balance sheet in the run up to flotation.