This measure goes beyond the provisions of other major bribery laws which affect international businesses, and it may well have a chilling effect on giving gifts and hospitality in the normal course of business. While the presumption can be rebutted, a defendant that starts from the position of having to prove gifts and hospitality provided to public officials were not provided corruptly will be fighting an uphill battle.
The authors believe there can be legitimate reasons for providing advantages to public officials e. On a practical basis, companies caught by the new Act that wish to provide benefits for any reason to public officials or their family members should have a watertight — and documented — reason for doing so. A particularly tricky issue here will be in recognising whether prospective recipients of gifts are indeed sufficiently connected to the public official to fall foul of the presumption.
Finally, the Act creates a rebuttable presumption that certain political donations are corrupt, and provides police with the power to temporarily seize property if an officer has reasonable grounds for suspecting it is an instrument or proceeds of bribery. This power may protect corporations or foreign states in preventing the proceeds of corrupt schemes that end up in Ireland being dissipated before they can be preserved pursuant to a court order. In addition to an unlimited fine, corporate offenders will face mandatory exclusion from public procurement across the European Union for five years.
This provision is similar to section 7 of the Bribery Act in the UK.
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The Act is silent as to the matters that a Court may consider in determining whether a corporation took reasonable steps or exercised due diligence. Using the same term was used in the UK could have created a nascent pool of shared, non-binding but informative case law across common law jurisdictions.
Unlike in France , the UK and the US , the Irish government has not issued guidance to organisations on how to prevent bribery. This is probably no great loss. Unless it were to be highly prescriptive and enjoy quasi-statutory effect, it is hard to imagine how more non-binding guidance would assist most businesses when they can already draw from existing international best practice and experience. Numerous non-governmental organisations , intergovernmental development banks , law firms and consultancies have published excellent and free commentary that will be useful to Irish businesses, and experienced compliance practitioners should already understand what has been appropriate under similar anti-bribery regimes overseas.
Businesses that already have anti-bribery procedures in place perhaps designed to comply with existing American, British or other law probably have no need to panic about the Act. After all, its principal provisions, as they would affect international businesses, are generally consistent with similar laws in other jurisdictions.
However, given the presumption of corruption associated with advantages given to public officials and their associates, international organisations should critically examine whether their gifts and hospitality policies are appropriately cautious. It may be a good idea to prohibit the provision of gifts and hospitality to any public official unless it has been reviewed by an appropriately trained manager.
More generally, the Act underscores the importance of businesses having training in place for employees, officers and agents, and ensuring that training is truly multijurisdictional. Eoin and Viv advise clients on how to build practical and effective compliance systems, and how to respond to corporate crime incidents when they arise. Official Sites. Company Credits. Technical Specs. Plot Summary. Plot Keywords. Parents Guide.
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‘Presumed Guilty’ wins Emmy for best investigative journalism
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Presumed guilty: Dramatic implications of new Irish bribery law
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