Bribery vs extortion how to#

Bribery vs extortion how to#

Staff working in locations where such payments may be requested should receive training as to how to respond to demands for payments. It is very much a question of avoiding the situation in the first place trying to plan operations so that the need to make payments can be avoided, and understanding local law and customs well enough that making payments can be resisted. What then can businesses do to avoid failing foul of the Act in these circumstances? Some ideas are discussed by Rose Parlane in her recent post: “ Facilitation payments – to pay or not to pay: a difficult question?”. Economic duress in a situation like the one contemplated above is apparently not regarded by the Ministry of Justice as an excuse for making such payments to foreign officials. As with other criminal offences, threats “ against loss of life, limb or liberty” will be required and, even then, the defence is only “ very likely” to be available. From the guidance, it does not appear that prosecuting authorities will have any greater regard to economic duress in the context of Section 6 of the Act – despite fact that payments may be made without any intention to secure improper performance by the public official concerned. The scope of a duress defence in the context of a prosecution for bribery will it seems be no greater than in the general criminal law. This reflects a totally orthodox application of the common law defence and is likely to have harsh consequences in scenarios such as that outlined above. The common law defence of duress is very likely to be available in such circumstances.” It is recognised that there are circumstances in which individuals are left with no alternative but to make payments in order to protect against loss of life, limb or liberty. The issue of payments made under duress is briefly discussed in the government guidance to the Act: The section therefore applies in the scenario described above.

The Section 6 offence of bribing a foreign public official does not require that the public official is improperly induced to perform his functions, only that a business advantage is obtained by the party making the payment. As discussed previously at the BriberyLibrary, so called “facilitation payments” are not allowed under the UK Bribery Act. approving the shipment as required under local law). Under the FCPA, the payment would likely be treated as a “facilitation payment” given that a relatively small amount is being paid to secure the performance of a non-discretionary function (i.e. The importer does not make the payment freely, but as a result of the duress being applied by the official. The official is not being corrupted the official is acting corruptly.

Many would class this as a case of extortion, not one of bribery. On the contrary, it is the port official who is exerting illegitimate pressure on the importer. For one thing, this scenario just doesn’t fit what would generally be considered bribery.

I think anyone could be forgiven for thinking that it does not. A representative of the port authorities explains that for a “small fee”, the formalities can be waived and the cargo approved. If the shipment is not made on time, a valuable client will be lost. In the meantime, the cargo sits on the dockside baking in the hot sun. Although there is no legitimate reason for delay, the foreign port authorities insist upon carrying out unspecified administrative checks and searches that “could take weeks”. Picture an all too common scenario: An importer of fresh produce learns that a shipment has been held up at customs abroad.