Prevention of Corruption Act compliance, FCPA and UK Bribery Act interface, anti bribery programme design, third party due diligence and investigation response.
Short, direct, on the record.
Yes. Section 9 of the Prevention of Corruption Act (as amended 2018) creates a corporate offence where a commercial organisation is guilty if a person associated with it gives or promises undue advantage to a public servant. The organisation has a defence if it proves it had adequate procedures to prevent such conduct.
Section 9 provides that a commercial organisation can defend itself by proving that it had adequate procedures designed to prevent persons associated with it from engaging in bribery. The Central Government is yet to publish guidance on what constitutes adequate procedures, but international frameworks (UK guidance, DOJ guidance) provide useful reference points.
A foreign company with operations or association in India can potentially face prosecution if a person associated with it bribes an Indian public servant. The 2018 amendment expanded the scope to cover commercial organisations, which can include foreign entities with India nexus.
The FCPA applies to (1) US issuers and domestic concerns operating through Indian subsidiaries, agents or JV partners, (2) Indian companies listed on US exchanges, and (3) any person who takes action in the territory of the US in furtherance of corrupt payment. Indian subsidiaries of US companies must maintain FCPA compliant books and records.
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