Anti-Bribery And Corruption Reforms For Companies And Directors

Author:Ms Claire Lord, Emer Gilvarry and Liam Guidera
Profession:Mason Hayes & Curran

The Irish Government's "White Collar Crime Package", announced in early November 2017, identifies a number of initiatives for further strengthening the corporate governance framework. The proposed reforms should ensure Irish companies are run in an accountable and legally compliant manner. The most tangible and immediate changes will be seen in the following areas:

Modernisation of Ireland's corruption and anti-bribery laws Continued implementation of measures to enhance the system of audit quality and audit oversight in Ireland Establishment of a central register for beneficial ownership of Irish companies Transposition of the Shareholders' Rights Directive The modernisation of Ireland's corruption and anti-bribery laws

The modernisation of Ireland's corruption and anti-bribery laws is proposed to be achieved by bringing the Criminal Justice (Corruption Offences) Bill 2017 into force. If enacted, the Corruption Offences Bill will amend or repeal the existing seven Acts dealing with bribery and corruption. It will also introduce new penalties, such as terms of imprisonment of up to 10 years and unlimited fines in certain circumstances, and introduce new offences, for instance, it will now be an offence to make payments knowingly or recklessly to a third party who intends to use them as bribes.

A noteworthy change proposed by the Corruption Offences Bill relates to the criminal liability of companies. The Bill states that a body corporate will be presumed to be guilty of an offence where certain representatives of the body corporate engage in corrupt activities on its behalf with the intention of obtaining or retaining business or to gain an advantage. These representatives include managers, employees, agents or directors, or subsidiaries of that body corporate.

As this offence applies to "bodies corporate", it potentially affects:

Irish companies operating anywhere in the world Irish activities of non-Irish companies This offence can extend to a manager, employee, agent or director of these companies where it can be shown that the offence was committed with their consent or that they were aware of the offence being committed and did not take steps to stop it.

A company accused of this type of offence can defend any proceedings brought against it by proving that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence.  Therefore, to be able to rely on this defence, companies affected by the...

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