Bermuda has passed its own Bribery Act (“Act”) in December 2016. The Act came into force on September 1, 2017.
The objectives of the new Bribery Act are to provide a modern, single piece of legislation criminalising bribery and to combat bribery that is committed at home or abroad.
The extraterritorial application of the act will cover any:
- Bermuda incorporated company or individual that conducts business (whether in Bermuda or elsewhere) found guilty of misconduct as defined in the Act; and
- Non-Bermuda incorporated company or individual that conducts business in Bermuda, found guilty of misconduct under the Act.
The Act distinguishes four main types of offences:
- Offences of bribing another person;
- Offences relating to being bribed;
- Bribery of foreign officials; and
- Failure of commercial organisations to prevent bribery.
All public officials will also be mandated to report any offer of a bribe, or face stiff penalties.
Failure of commercial organisations to prevent bribery
The Bermuda Government issued a guidance document describing the procedures which “relevant commercial organisations can put into place to prevent persons associated with them from bribing”.
The Act will be applicable to all commercial organisations carrying on a business.
The guidance follows six main principles for preventing bribery:
- Proportionate procedures: A commercial organisation’s procedures to prevent bribery by persons associated with it should be proportionate to the bribery risks it faces and to the nature, scale and complexity of the commercial organisation’s activities.
- Top-level commitment: The top-level management of a commercial organisation (be it the board of directors, the owners or any other equivalent body or person) should be committed to preventing bribery by persons associated with it. They are expected to foster a culture within the organisation in which bribery is never acceptable.
- Risk assessment: The commercial organisation should assess the nature and extent of its exposure to potential external and internal risks of bribery on its behalf by persons associated with it.
- Due diligence: The commercial organisation should apply due diligence procedures, taking a proportionate and risk based approach, in respect of persons who perform or will perform services for or on behalf of the organisation, in order to mitigate identified bribery risks.
- Communication (including training): The commercial organisation should seek to ensure that its bribery prevention policies and procedures are embedded and understood throughout the organisation through internal and external communication, including training, which is proportionate to the risks it faces.
- Monitoring and review: The commercial organisation should monitor and review the procedures designed to prevent bribery by persons associated with it and makes improvements where necessary.
What you should be doing to prepare for the new act?
There are immediate challenges following the Act for every organisation.
- Design robust anti-bribery policies and procedures;
- Roll out detailed anti-bribery training;
- Carry out a detailed anti-bribery risk assessment to understand the risks in your business; and
- Send out a clear message from senior management that the company will have zero tolerance towards bribery.
How can KPMG help?
Policies and procedures
We can assist you design ABC policies and procedures tailored for your business.
We have extended experience in carrying out anti-bribery risk assessments. We can help you understand where the bribery and corruption risks are within your organisation.
We can assist you develop a robust anti-bribery framework.
We have a team that has experience in delivering training sessions in the UK and Bermuda.
Developing and undertaking due diligence programmes
We can help you develop and undertake a detailed due diligence programme.
Assistance with Investigations
If you had any doubts that your organisation might have not been compliant in the past, it is always best to self-report and act immediately. We can help you investigate any historical problems and bring your organisation back on track.
Why choose KPMG?
There are compelling reasons for choosing KPMG as your organisation’s advisor:
- KPMG has experienced compliance professionals based in Bermuda. We
are available to discuss your needs and requirements and bring real international experience, with local insight;
- You can take advantage of KPMG’s established methodologies, global knowledge sharing systems and professional development programmes; and
- Our local experts have extended experience in working with the UK Bribery Act and the FCPA.