My colleague Henry Mixon of Mixon Consulting has an interesting observation regarding internal controls under the UK Bribery Act. Unlike the Foreign Corrupt Practices Act (FCPA), the Bribery Act does not have a books and records component written into the law. However, even without this books and records component, robust internal controls may be more important under for the reason that they must be present and functioning if a company is to assert an “Adequate Procedures” defense available under the Act.

Buried within “Principle Five of the Guidance” is the requirement that a) a company has appropriate financial controls to prevent and detect violation of anti-bribery policies; and (b) that these financial controls be communicated to both employees and relevant third parties. With this total lack of ‘guidance’ for companies subject to the Bribery Act to fall back upon, we believe companies can look to internal controls developed for the FCPA for some guidance. However, the internal controls put in place for the Bribery Act will need to address the specifics of that the Bribery Act. Clearly the two major differences will be lack of distinction between public officials and the jurisdictional nature of the Bribery Act will require a company’s internal controls to be global in scope.