When commissions become corruption
by Benjamin Maltby
As owners will know, superyachts arent run on shoestring budgets. And most of the money is spent not by them in person, but by their captains and other trusted third parties. In highly competitive marketplaces, there is an incentive to buy business with formal commissions, extravagant gratuities, or perhaps just a good old brown envelope.
In the UK giving incentives and rewards may be a criminal offence or not according to whether it falls foul of the Bribery Act 2010. This law is widely recognised as the toughest of its kind in the world, but its principles are much the same in the rest of the world, including the US Foreign Corrupt Practices Act.
Significantly, under the Bribery Act, a crime may be committed even if the transaction takes place outside of the UK. This was already the effect of a small and little-known piece of anti-terror legislation introduced in 2001, but the globe-trotting aspects of the Bribery Act are clearer and more coherent.
Legal commission payments
To be clear, a lot of commission arrangements are perfectly legal but its easy to overstep the mark, and there can be a false assumption that formality means legality.
The penalties for getting it wrong include an unusually long prison sentence and unlimited fines.
There are four key offences:
Receiving a bribe,
Bribing a foreign public official, and
Failing to prevent bribery.
Bribing occurs when a person offers, gives, or promises to give, a financial or other advantage to someone else in exchange for improperly performing a function or activity. Receiving a bribe is defined as requesting, accepting or agreeing to accept such an advantage.
An activity will be improperly performed when any expectation of good faith or impartiality has been breached, or when the function has been performed in a way not expected of a person in a position of trust.
Helpful, this now clarifies what is expected when a commission is an overt element of any business model even where this may lead to a reduced commission.
Necessary graft and accidental bribery
So what about those instances where greasing palms to get things to happen is just the way things work?
The Act states that local practices should be disregarded when deciding on improperness unless they form part of the written local law.
While the UK authorities are alive to the necessity of facilitation payments, official tolerance relates only to small payments, made by companies with the right bribery policies and procedures in place.
Hospitality can constitute bribery if it is disproportionately generous. In an industry devoted to luxury, it can be easy for crewmembers to confuse the lifestyle of their wealthy employers with their own and not think twice about receiving hospitality which, seen from afar, is completely over the top.
The offence of failing to prevent bribery applies only to commercial organisations, but this includes any company or partnership carrying on any business in the UK. Conceivably, this could include yacht-owning companies managed from the UK.
With regard to the first three offences, while crimes committed outside the UK (except on board UK-flagged vessels) are normally beyond the jurisdiction of the courts, this is not the case with bribery.