In terms of global anti-bribery compliance, whether the anti-bribery provisions of the FCPA, the UK Bribery Act, or the provisions of one of the other anti-bribery statutes now being enforced are involved, it is not critical that a payment is actually made.  In addition, a bribe need not actually be received, and the object of the bribe need not be actually attainable.[1]  Indeed, the public official need not accept the bribe for there to be a violation.[2]  All that is required is that what is paid, offered, or promised be sufficient to form the basis for an improper inducement.

For any party to the OECD Anti-Bribery Convention or the United Nations Convention against Corruption, any offer or promise that could reasonably be believed to be an improper inducement falls within the category of prohibited conduct.  For this reason, in implementing a compliance program and accompanying internal accounting controls, a challenge is presented in attempting to deter and prohibit improper inducements that are intangible in nature.  Though imperfect, various forms of controls can be devised to monitor and deter improper payments.  But given their intangible nature, controlling and deterring what may be offered or promised poses a particular challenge.

Ultimately, due diligence associated with the individuals and entities involved may be the most important factor in controlling what may be offered or promised.  Yet regardless of what methods and means are devised to deter improper inducements, great care needs to be exercised to address the prospect of improper offers or promises in implementing an FCPA, UK Bribery Act, or global anti-bribery compliance program.  The focus should not be limited to improper payments.

 

[1]See, e.g., United States v. Jacobs, 431 F.2d 754, 759-60 (2d Cir. 1970), cert. denied, 402 U.S. 950, 91 S. Ct., 1613, 1634, 29 L. Ed. 2d 120, reh'g denied, 403 U.S. 912, 91 S. Ct. 2210, 29 L. Ed. 2d 690 (1971) ("Section 206(b) is violated even though the official offered a bribe is not corrupted, or the object of the bribe could not be attained, or it could make no difference if after the act were done it turned out that there had been actually no occasion to seek to influence any official conduct"); United States v. Troop, 235 F. 2d 123, 125 (7th Cir. 1956) ("[I]t is entirely immaterial that for some reason, subsequently determined, the Officer could not have brought about the result desired by the person offering the bribe.").

[2]Jacobs, 431 F.2d. at 760.