- At Kemp Little, we are known for our ability to serve the very particular needs of a large but diverse technology client base. Our hands-on industry know-how makes us a good fit with many of the world's biggest technology and digital media businesses, yet means we are equally relevant to companies with a technology bias, in sectors such as professional services, financial services, retail, travel and healthcare.
- Kemp Little specialises in the technology and digital media sectors and provides a range of legal services that are crucial to fast-moving, innovative businesses.Our blend of sector awareness, technical excellence and responsiveness, means we are regularly ranked as a leading firm by directories such as Legal 500, Chambers and PLC Which Lawyer. Our practice areas cover a wide range of legal issues and advice.
- Our Commercial Technology team has established itself as one of the strongest in the UK. We are ranked in Legal 500, Chambers & Partners and PLC Which Lawyer, with four of our partners recommended.
- Our team provides practical and commercial advice founded on years of experience and technical know-how to technology and digital media companies that need to be alert to the rules and regulations of competition law.
- Our Corporate Practice has a reputation for delivering sound legal advice, backed up with extensive industry experience and credentials, to get the best results from technology and digital media transactions.
- In the fast-changing world of employment law our clients need practical, commercial and cost-effective advice. They get this from our team of employment law professionals.
- Our team of leading IP advisors deliver cost-effective, strategic and commercial advice to ensure that your IP assets are protected and leveraged to add real value to your business.
- Our litigation practice advises on all aspects of dispute resolution, with a particular focus on ownership, exploitation and infringement of intellectual property rights and commercial disputes in the technology sector.
- We have an industry-leading reputation for our outsourcing expertise. Our professionals deliver credible legal advice to providers and acquirers of IT and business process outsourcing (BPO) services.
- We work alongside companies, many with disruptive technologies, that seek funding, as well as with the venture capital firms, institutional investors and corporate ventures that want to invest in exciting business opportunities.
- Our regulatory specialists work alongside Kemp Littles corporate and commercial professionals to help meet their compliance obligations.
- With a service that is commercial and responsive to our clients needs, you will find our tax advice easy to understand, cost-effective and geared towards maximising your tax benefits.
- At Kemp Little, we advise clients in diverse sectors where technology is fundamental to the ongoing success of their businesses.They include companies that provide technology as a service and businesses where the use of technology is key to their business model, enabling them to bring their product or service to market.
- We bring our commercial understanding of digital business models, our legal expertise and our reputation for delivering high quality, cost-effective services to this dynamic sector.
- Acting for market leaders and market changers within the media industry, we combine in-depth knowledge of the structural technology that underpins content delivery and the impact of digitisation on the rights of producers and consumers.
- We understand the risks facing this sector and work with our clients to conquer those challenges. Testimony to our success is the continued growth in our team of professionals and the clients we serve.
- We advise at the forefront of the technological intersection between life sciences and healthcare. We advise leading technology and data analytics providers, healthcare institutions as well as manufacturers of medical devices, pharmaceuticals and biotechnological products.
- For clients operating in the online sector, our teams are structured to meet their commercial, financing, M&A, competition and regulatory, employment and intellectual property legal needs.
- Our focus on technology makes us especially well positioned to give advice on the legal aspects of digital marketing. We advise on high-profile, multi-channel, cross-border cases and on highly complex campaigns.
- The mobile and telecoms sector is fast changing and hugely dependent on technology advances. We help mobile and wireless and fixed telecoms clients to tackle the legal challenges that this evolving sector presents.
- Whether ERP, Linux or Windows; software or infrastructure as a service in the cloud, in a virtualised environment, or as a mobile or service-oriented architecture, we have the experience to resolve legal issues across the spectrum of commercial computer platforms.
- Our clients trust us to apply our solutions and know-how to help them make the best use of technology in structuring deals, mitigating key risks to their businesses and in achieving their commercial objectives.
- We have extensive experience of advising customers and suppliers in the retail sector on technology development, licensing and supply projects, and in advising on all aspects of procurement and online operations.
- Our years of working alongside diverse software clients have given us an in-depth understanding of the dynamics of the software marketplace, market practice and alternative negotiating strategies.
- Working with direct providers of travel services, including aggregators, facilitators and suppliers of transport and technology, our team has developed a unique specialist knowledge of the sector
- Your life as an entrepreneur is full of daily challenges as you seek to grow your business. One of the key strengths of our firm is that we understand these challenges.
- Kemp Little is trusted by some of the worlds leading luxury brands and some of the most innovative e-commerce retailers changing the face of the industry.
- HR Bytes is an exclusive, comprehensive, online service that will provide you with a wide range of practical, insightful and current employment law information. HR Bytes members get priority booking for events, key insight and a range of employment materials for free.
- FlightDeck is our portal designed especially with start-up and emerging technology businesses in mind to help you get your business up and running in the right way. We provide a free pack of all the things no-one tells you and things they dont give away to get you started.
Olympics Newsletter - Welcome to the cheap seats: Olympic corporate hospitality and the Bribery Act 2010
What Ticket Shortage?
The Scope of the Bribery Act
- active bribery: where a person offers, promises or gives an advantage to another where that advantage is given in relation to the improper performance of a relevant function;
- passive bribery: where a person requests, agrees to receive or accepts an advantage, and that advantage is taken in in relation to the improper performance of a relevant function;
- bribery of foreign public officials: where a person offers, promises or gives an advantage to a foreign public official with the intention to influence the performance of that official’s functions to obtain a business advantage; and
- failure to prevent bribery: where a person associated with a company bribes another person, intending to obtain a business advantage for the company; it will be a defence for the company to show that it had adequate procedures in place designed to prevent bribery.
Under the Act, “improper performance” occurs where there is a breach of a an expectation that a function will be carried out in good faith or impartially, or that it will be performed in accordance with a position of trust.
Active and Passive Bribery
Bribing a foreign public official
However, the Government guidance acknowledges that bona fide corporate hospitality which seeks to improve the image of a commercial organisation or establish business relationships, is recognised as an established and important part of doing business and it is not the intention of the Act to criminalise such behaviour. The Act is not intended to prohibit reasonable and proportionate hospitality.
In order to amount to a bribe under section 6 of the Act, there must be an intention for a financial or other advantage to influence the official in his or her role and, by doing so, secure business or a business advantage. Even where the prosecution is able to establish a financial or other advantage has been offered, promised or given, it must then show that there is sufficient connection between the advantage and the intention to influence and secure business or a business advantage. Determining whether this connection can be established will depend on a variety of factors including:
- the type and level of the hospitality provided (the more lavish the hospitality or the higher the expenditure provided then, generally, the greater the inference that it is intended to influence the official to grant business or a business advantage in return);
- the manner and form in which the advantage is provided;
- the level of influence the foreign public official has over awarding the business
- the standards or norms applying in a particular sector (would the corporate package be commensurate with that provided by others?);
- timing – for example, flying an official to meet business executives in London as a matter of genuine convenience and providing Olympic tickets as part of the trip would be unlikely to raise the necessary inferences; but if the choice of London as the most convenient venue was in doubt because executives could have met the official when they visited the country the previous week, then the necessary inference might be raised; and
- connection to relevant business – lavish hospitality completely unrelated to an organisation’s services or business is more likely to raise the necessary inference.
Therefore, it is unlikely, for example, that a standard Olympic corporate package will raise the inference that it was intended to have a direct impact on decision making, particularly where such hospitality is appropriate within the reasonable and proportionate norms for the particular industry. It may even be, in some circumstances, that additional hospitality in the form of travel and accommodation costs does not even amount to a financial or other advantage to the relevant official because it is a cost that would otherwise be borne by the relevant foreign Government rather than the official himself.
Defending an Allegation of Failure to Prevent Bribery
As the Act has been in force for nearly 12 months, most companies should by now have put in place bribery prevention procedures and policies, so as to be seen to be acting competitively and fairly (and in order to provide a defence to the section 7 offence under the Act). These should include standards for corporate hospitality.
For those who have yet to put these in place, the Ministry of Justice guidance gives some helpful indicators of what a company should do in order to show it had adequate procedures in place to prevent bribery:
- conduct a risk assessment relating to that business’ dealings with clients, partners and foreign public officials;
- write a policy statement regarding corporate hospitality and promotional expenditure
- issue internal guidance to staff members on procedures that apply to the provision of hospitality and promotional expenditure;
- undertake regular monitoring, reviews and evaluation of internal procedures and compliance; and
- provide appropriate training and supervision to all staff.
Last year, the Serious Fraud Office published a webinar on its website featuring its former General Counsel, Vivian Robinson QC, discussing the Act and how the SFO plans to enforce it. Based on “good advice” from Transparency International, Robinson’s view is that in order for companies to ensure hospitality is legitimate, they should:
- publish clear written policies barring gifts, expenses or hospitality which might influence or be seen to influence a matter;
- provide guidance on upper financial limits for gifts, hospitality or expenses;
- communicate the business’ policies and procedures to employees, partners and suppliers; and
- perhaps most importantly, fully document what gifts, hospitality packages and expenses of a material value, have been given or received
Reading the Act, it is pretty clear that offering Olympic tickets to clients and potential business targets would not constitute an offence, provided that the company has relevant policies in place and can show it has complied with them. Care should be taken if the Olympic tickets offered are part of a larger corporate hospitality spend which could be seen to be extravagant (for example, first class flights, 5-star hotel accommodation, seats for friends and family of the client, Michelin-starred dining, West End theatre tickets and spending money whilst in London), but without the necessary intention to induce “improper performance” or influence (if a foreign public official). This shouldn’t affect the average business looking to provide a client or target with an Olympic ticket, though, particularly if the ticket isn’t for one of the main “blue ribbon” events.
Could it be that the real reason for a comparative lack of demand for Olympic corporate seats is that, for most companies in the present economic climate, the £6,500 required for a top Olympic package at the 100m final could be better spent on the business itself rather than hospitality?
If you have any questions or would like to discuss anything in this article in more detail, please contact Andy Moseby.