Law

The Mabey & Johnson Case – Implications for Shareholders


Daniel Walker,  Voisin

Mabey & Johnson Limited, the first company to be convicted in the UK for acts of bribery overseas, was sentenced at Southwark Crown Court in September 2009 in relation to admitted offences of overseas corruption and breaching UN sanctions.

The prosecution for corruption arose from the company's voluntary disclosure to the Serious Fraud Office (the "SFO") of evidence that the company had sought to influence decision-makers in public contracts in Jamaica and Ghana between 1993-2001 and the prosecution for breach of UN sanctions (in relation to the Iraq "Oil-for-food" programme), arose from an investigation that commenced in January 2007.

However, Mabey & Johnson Limited continues to set anti-corruption enforcement precedent as the SFO has recently taken action in the High Court under Part 5 of the Proceeds of Crime Act 2002 ("POCA") which has resulted in an Order for a parent company, Mabey Engineering (Holdings) Ltd, to pay £131,201 in recognition of sums it received through share dividends derived from contracts won through unlawful conduct by Mabey & Johnson Limited, in which it was a principal shareholder.

Notwithstanding that this parent company did not know about Mabey & Johnson's inappropriate behaviour, the SFO was able to recover "property obtained through unlawful conduct" in a case which has potentially far-reaching implications for investors.

Indeed, this was the first time that the SFO has compelled a parent company, rather than the company itself or individuals responsible for its management, to forfeit profits under Part V of POCA and indicates that the SFO plans to leverage this power broadly to recover shareholder dividends resulting from corrupt activities.

In a speech following the action against the Shareholder of Mabey & Johnson Limited, the Director of the SFO, Richard Alderman, has warned investors that the case marks the beginning of a more proactive approach by the SFO and he highlighted two key messages which arise from the settlement:

1. "First, shareholders who receive the proceeds of crime can expect civil action against them to recover the money. The SFO will pursue this approach vigorously. In this particular case, however, the shareholder was totally unaware of any inappropriate behaviour. The company and the various stakeholders across the group have worked very constructively with the SFO to resolve the situation and we are very happy to acknowledge this; and

2. The second broader point is that shareholders and investors in companies are obliged to satisfy themselves with the business practices of the companies they invest in. This is very important and we cannot emphasise it enough. It is particularly so for institutional investors who have the knowledge and expertise to do it. The SFO intends to use the civil recovery process to pursue investors who have benefited from illegal activity. Where issues arise, we will be much less sympathetic to institutional investors whose due diligence has been lax in this regard."

These proceedings have therefore excited considerable concern, as it has been suggested that by targeting shareholders in this way, the SFO are pushing the boundaries of the law and raises important questions about the extent to which shareholders will be held liable for the criminal conduct of their subsidiaries.

It also raises the issue of whether institutional investors such as pension funds and private equity firms will be held to a different standard from other investors as shareholders with financial experience and resources may be expected to monitor their portfolio companies sufficiently more closely in order to mitigate corruption risks.

In light of the Mabey & Johnson case, private and equity firms will therefore need to take steps in order to ensure that they and their portfolio companies are not violating the United Kingdom Bribery Act and should ensure that they have adequate procedures in place to prevent bribery, as prevention remains the best form of defence. Such policies must consider the specific risk factors of the company, for example, the industry, its business model, the countries in which it does business and the volume of business conducted through third parties. They should also ensure that due diligence is conducted prior to an investment to ensure that any problems uncovered are adequately dealt with.

The Mabey & Johnson case also has relevance for the Channel Islands as a Jersey Company with shares in a UK Company that sustains a Bribery Act violation and prosecution, may well have to return profits, even where it did not have knowledge of the unlawful conduct.

In view of the threat to dividends, the additional criminal liability and adverse implications for valuation, reputation and marketability, the Mabey & Johnson case emphasises the importance for investors to ensure that adequate due diligence is conducted and that anti-corruption risk analysis should be undertaken before shares in a company are acquired.



Daniel Walker, Solicitor
Voisin, Jersey, Channel Islands
E: This email address is being protected from spambots. You need JavaScript enabled to view it.; W: www.voisinlaw.com

GGI Logo 70x50px

GGI Geneva Group
International AG

Schaffhauserstrasse 550
P.O. Box 286
8052 Zurich
Switzerland

Contact

T: +41 44 2561818
F: +41 44 2561811
This email address is being protected from spambots. You need JavaScript enabled to view it.
www.ggi.com

Disclaimer

Legal Disclaimer & Privacy Statement

Legal Disclaimer

This website is managed by Geneva Group International AG Zürich (hereinafter referred to as "GGI") on behalf of the member firms of GGI, a worldwide organization of independent Law, Accounting and Consulting Firms. GGI provides information and documentation on World Wide Web sites, such site(s) being known as the GGI Internet (hereinafter referred to as the "Website"). If you make any use of this Website, you confirm that you agree to each of the terms and conditions set forth below. You shall not be authorized to use this Website if you do not agree with any of the terms and/or conditions set forth below.

GGI, a company incorporated in accordance with the laws of Switzerland, provides no legal, audit or other professional services to clients. Such services are provided solely by GGI member firms in their respective geographic areas. GGI and its member firms are legally distinct and separate entities. They are not and nothing shall be construed to place these entities in the relationship of parents, subsidiaries, partners, joint ventures or agents. No member firm of GGI has any authority (actual, apparent, implied or otherwise) to obligate or bind GGI or any other GGI member firm in any manner whatsoever.

No action should be taken or omitted to be taken in reliance upon information contained in this Website. The information contained and accessed on this site is provided by the member firms of GGI for general guidance and is intended to offer the user general information of interest. The information provided is not intended to replace or serve as substitute for any accounting, legal (in those jurisdictions where GGI member firms are permitted to practice law), tax or other professional advice, consultation or service. You should consult with a professional from a GGI member firm in the respective legal, accounting, tax or other professional area. Based on specific facts or circumstances, the application of laws and regulations may vary.

Based on the fundamental universal condition of the electronic communication process, GGI does not guarantee, warrant and/or offer any assurance that this Website (including its functions, contents, downloadable files, software etc.) will be uninterrupted, without delay, error-free, omission-free, or free of viruses, free of Trojan horses, similar destructive software and/or free of harmful codes which may impair the proper functioning of any software, hardware or other equipment and/or materials of the user. GGI does not guarantee, warrant and/or offer any assurance that this Website is compatible with any user's computer equipment (hardware and/or software) or network through which access to this Website is gained. GGI does further not guarantee, warrant and/or offer any assurance that the use of this Website will not lead to viruses, Trojan horses and/or similar destructive software accessing any user's computer equipment.

Access to this Website may be interrupted or unavailable at any time, in particular during maintenance or upgrade procedures. Therefore, the information is provided "as is" without warranties of any kind, express or implied, including accuracy, timeliness and completeness. In no event shall GGI or partners, executives, principals, agents or employees of its member firms be liable for any direct, indirect, incidental, special, exemplary, punitive, consequential or other losses and/or damages of any kind (including, but not limited to, liability for loss of use, data, profits, other intangibles, the costs of procurement of substitute goods and/or services), without regard to the form of any action, including but not limited to contract, negligence or other tortuous actions, arising out of or in connection with this Website, any content on or accessed by use of this Website, or any copying, display or other use hereof even if GGI has been notified of the possibility of such loss and/or damage. All statements, information, downloadable data and files etc. on this Website are made available without liability or guarantee for their correctness, completeness, accuracy, durability, assurance of features, reliability, workability, merchantability, quality, fitness for a particular purpose, achievement of results, non-infringement of proprietary rights, absence of any deficiencies or something similar. GGI shall not be liable for any damage which a user may suffer as a result of any errors in content or arising from any virus or other destructive software. Users are responsible for ensuring that their computer equipment has appropriate security and virus protection features.

All intellectual property rights (in particular copyrights, trademark rights, design rights and patent rights) to the contents of this Website shall be reserved. As content on the site is protected by intellectual property laws (such as for instance copyright, trademark, patent laws) as well as by unfair competition laws, any unauthorised use of any materials on the site may violate copyright, trademark, patent and other laws. Pictures, texts, graphics, computer software etc. which are contained, featured and/or downloadable on this Website may not be copied, downloaded or used in any other way unless indicated otherwise on this Website. Should a user download and/or print the materials on this Website for personal or non-commercial use, the user must retain all copyright and other proprietary notices contained in the original materials on any copies of the material and the source must be indicated completely. The complete and/or partial reproduction, transmission (electronically and/or otherwise), modification, public display, performance, distribution, linking, framing or other use of this Website for any public and/or commercial purposes shall not be allowed without the prior written consent of GGI and the complete indication of the source. GGI does not grant the users of this Website any rights (in particular no intellectual property rights), except for the rights that are necessary to use this Website for purposes permitted under these conditions.
Some links on this Website refer to other websites which have been set up and are operated by third parties. Such links are provided only as a convenience to users. GGI does not control and is not responsible for any of these sites or their content. GGI explicitly disclaims any endorsement or recommendation of and guarantee or liability for such websites of third parties.
This Website is not intended for persons who are subject to a jurisdiction that prohibits the publication of and/or access to this Website (be it because of the nationality, their age, the domicile or for any other reason). If you are affected by such restrictions, you may not access this Website.

Privacy Statement

Geneva Group International AG Zürich, a joint-stock company incorporated under Swiss law with Swiss company registration number CH-170.3.020.433-0 whose registered office is at Schaffhauserstrasse 550, CH-8052 Zurich, Switzerland, (hereinafter referred to as "GGI") is in charge of the data supplied to this Website and the processing of such data. This website is managed by GGI. The goal of this target group is to develop additional sustained and diversified business opportunities on the basis of these relationships.

For the purposes of this Privacy Statement, member firms, correspondent firms, associated firms of GGI and other companies assisting GGI in running and maintaining this website are together described as Partners.

GGI provides information and documentation on World Wide Web sites, such site(s) being known as the GGI Internet (hereinafter referred to as the "Website"). This page contains the information gathering and use policies adopted by GGI in connection with the Website. These policies are subject to periodic review and any changes will be included within this section of the Website.
GGI is not responsible for the privacy policies of third party sites to which links are provided (including sites of Partners of GGI). The privacy policies on these sites should be checked before providing any personal information to these sites.

GGI is committed to the protection of personal information supplied by clients and prospective clients and other users of this Website. GGI provides further support and specialised services for Partners most of whom are situated outside Switzerland in countries which may not afford an adequate level of protection for personal data. Personal information submitted to the Website may be transferred to other Participant Firms outside of Switzerland to the extent necessary to meet the purpose for which the information was submitted. In submitting personal data to this Website in connection with a request for support and specialised services, the individuals concerned consent to the transfer of their personal data outside Switzerland to the extent necessary to comply with the request.

Collection of information

GGI will only collect and use personal data voluntarily and openly provided to this Website. Authorised users are able to browse the Website without disclosing any personal information. An authorised user of this Website may choose to provide GGI with limited personal data as required in order to register for certain services; once registered the information will only be used for the specified purpose(s). If you provide any data by completing the appropriate spaces on this Website or by sending a message to GGI by any means (particularly e-mail) you confirm that you agree that GGI may save, analyze and/or use the date for any purposes, including, but not limited to sending information and brochures to you. You may revoke your consent to the further use of the transmitted data by GGI at any time by sending an e-mail to GGI.

GGI reserves the right to save information regarding the domain name and/or IP-address of users of the GGI Website or their providers' for administrative, statistical and/or other purposes. The IP address indicates the location of the authorised users' computer on the Internet. GGI does not require registration for access to the Website.

It will normally be clear when personal information is being collected. The information required is the minimum necessary to enable GGI to deal with the services requested, but additional information may be requested in order for GGI to provide the most appropriate response. If such additional information is requested it is highlighted and its provision is voluntary.

We do not solicit sensitive personal data through the Website except where legally required to do so, e.g. for the purposes of retaining information for inclusion in the GGI directories of Partners, their principals and their professional expertise. We would suggest information of this nature is not provided except where such data is for inclusion in GGI directories of Participating Firms, their principals and their professional expertise.

At the present time, the standard technology known as "cookies" is not used on the GGI Website. Cookies are small text files placed on the authorised user's hard drive that allow the Website to store tokens of information in connection with use of the Website by allocation of an identifier to an authorised user while the Website is in use. However, GGI reserves the right to start using cookies at any moment without prior notice. Use of cookies would enable GGI to analyse the operation of the Website, thus permitting continuous improvement of the service that it provides.

Use of information

Information is used only for the specific purpose for which it was provided except where there has been an explicit selection to receive other information from GGI. Personal data provided through the Website will be made available to the provider of the information on request as any individual whose personal data is held on the Website is entitled under the Swiss Privacy Act to the information constituting his or her personal data. Personal information may be deleted from the Website at any time. Requests for copies or deletion of information may be made by e-mailing the Geneva Group International Head Office in Zurich at any time.

Provision of Information to Third Parties

GGI will provide personal information to third parties in the following circumstances:
 
  • where the transfer is necessary to fulfil the requirements of the operation for which the information was provided, and the third party is a Partner;
  • in order to fulfil a request which involves other Partners;
  • so as to assist GGI's professional advisors regarding matters referred to them concerning the operation of the Website:
  • where requested explicitly by an authorised user of the Website;
  • or as required by a court order or any other legal or regulatory requirement.
GGI does not collect or compile personal data or information obtained by the Website for dissemination or sale to outside parties not Partners for the purposes of marketing or mailing by or on behalf of third parties. GGI does not undertake marketing activities for third parties.

Accuracy of information

GGI assumes responsibility for keeping an accurate record of personal data once it has been submitted, but not for confirming the ongoing accuracy of the personal information. If GGI is advised that the personal data is no longer accurate, it will be amended (where practical).

Retention of information

Information collected from authorised users of the Website will be kept in order to provide the required services as well as for statistical purposes. Once the service has been completed all information will be destroyed in accordance with GGI's data retention policies. Where the information has been collected in connection with an expression of interest in working for GGI or a Partner it is agreed that GGI may use, hold and destroy personal data supplied in connection with the initial expression of interest in accordance with GGI's standard recruitment procedures:
 
  • details may be retained for up to the next twelve months for the purpose of notification of suitable vacancies that might arise;
  • details may be used for the purpose of research and analysis designed to improve recruitment and human resources policies and practices.
Where the authorised user of the Website has provided additional information, personal details will be retained for a period of time reasonable in the context of the nature of the request.

If these conditions are not acceptable the site should not be further used.

Security of information

GGI has implemented accepted standards of technical measures and security policies that are aimed at protecting the personal data it has under its control from:
 
  • unauthorised access;
  • improper use or disclosure;
  • unauthorised modification;
  • unlawful destruction or accidental loss.
All GGI personnel are required to keep personal information confidential and only authorised persons have access to such information.

Please note that the Website contains links to other sites (including sites maintained by Partners) which are not governed by this privacy statement.

Additional general conditions governing the Legal Disclaimer and the Privacy Statement

The rejection of any liability and/or responsibility regarding the Website and its content and other terms and/or conditions contained in this legal information are also applicable to all companies associated or affiliated with GGI, particularly GGI member firms (Partners).

GGI reserves the right to change all and/or any of the regulations mentioned above at any time without any prior announcement. Unless explicitly indicated otherwise, the new regulations shall immediately apply to all information, indications etc. featured on the GGI Website. By continuing to use the GGI Website, you accept all changes of such regulations.

The invalidity or unenforceability in any jurisdiction of any of these terms shall not affect the validity or enforceability of any other of these terms. If any term is held to be invalid or unenforceable it shall be deemed to be amended to the minimum extent required to render such term valid or enforceable, such amendment to be determined by GGI.

The Legal Disclaimer and the Privacy Statement indicated above shall be governed by and are construed in accordance with Swiss substantive laws (excluding the rules of the conflict of laws) and the courts of Zurich, Switzerland shall have exclusive jurisdiction in any possible dispute.


Copyright pictures
 
The copyright of the photos is published here or under the articles.

Geneva Group International; Rieder Media - Uwe Rieder
Fotolia.com: Kurhan; lagom; Abou Jaoude, Siegmar; Jürgen Effner; magcom; Maksim Šmeljov; Gilles Paire; david hughes; clayllama; robynmac; Dan Marsh; daphot75; Suzanne E.; Pierre-Yves Babelon; QQ7; Fotokon; reinobjektiv; cienpies; Alterfalter; Mark Yuill; Flying-Tiger; Katja Wickert; sk19; fazon; Andy Dean; Immo Schiller; Pavla Vanicka; jamesdavidphoto; sysiphus; Kirill_M; Herbert Esser; djama; Rafael Ben-Ari; ollirg; bruder jakob; soleg; Kobby Dagan; Chris Boswell; Hagit Berkovich; Ruzanna Arutyunyan; lilufoto; zybilo; Esther Wagner; pixelfux; Jim Parkin; Zacarias da Mata; Martina Berg; Konstantin Yuganov; Gail Johnson; maudanros; auremar; swisshippo; tobago77; rudi1976; tagstiles.com; detlef menzel; Luftbildfotograf; FotolEdhar; Temistocle Lucarelli; ErnstPieber; synto; ZINQ Stock; Tupungato; Barbara Helgason; Aleksey Khripunkov; Lucian Milasan; Gabriela; JonaSanpo Tokyo; Leonid Tit; Sven Hoppe; sborisov; denys_kuvaiev; G.J. Prozee; Andrey Burmakin; Digitalpress; gemenacom; arsdigital; deusexlupus; travelwitness; Alison Cornford; gena96; anyaivanova; spiritofamerica; G. Mönks Photografie; Moreno Novello; Picture-Factory; Galyna Andrushko; endostock; Thomas Röske; carlos; Mezzalira Davide; griangraf; laur7410; simon gurney; sborisov; ChantalS; th-photo;kbuntu; maudanros; apops; JR Photography; Josemaria Toscano; luanka; Tyler Olson; Jörg Hackemann; drubig-photo; AlfaSirius; arenaphotouk; vvoe; rolffimages; Ross Kummer; dabldy; silver-john; Wimbledon; nitroshoprod; Moreno Soppelsa; piccaya; Hawkeye; Horváth Botond; motodan; fazon; Minerva Studio; Digishooter; Mapics; TMAX; Fanchy; JFL Photography; kichigin19; Nmedia;  fotofuerst; Henri FRONTIER; Marcin Kubiak; pitrs; goldencow_images; habrda; nattanan726; dmitrydesigner; PackShot; swisshippo; michaeljung; Friedberg; Rawpixel; bluedesign; Ralf Gosch; Forgiss; Frankix; Jörg Hackemann; Gilles Paire; JaimeP; peresanz; lumen-digital; Stefano Garau; AlexF76; industrieblick; sborisov; chris2766; mitifoto; kamonrat; Rainer Plendl; peresanz; Vojtech Vlk; scabrn; Luftbildfotograf; Andrew Kazmierski; bruno135_406; pressmaster; vandertens; Tom-Hanisch; Alexey Stiop; Patrik Stedrak; Jiri Foltyn; kosmos111; Tomfry; S.Alias; beerkoff; Peter Marble; forcdan; Henryk Sadura; TTstudio; samott; Nordreisender; QQ7; imagineilona; 072618; aroberlin; lunamarina; whitelook; Pavel Parmenov; Jeff; jcfotografo; Jiri Foltyn; JS; Robert Wilson; SNEHIT; Sergii Figurnyi; mandritoiu; tilialucida; rabbit75_fot; IRStone; stockphoto mania; saiko3p; zoltangabor;  E. Adler; lovegtr35; kiravolkov; davidevison; Kruwt; alexandro900; Rafael Ben-Ari; Frédéric Prochasson; Halfpoint; fotoherkules; eddygaleotti; mandritoiu; Mik Man; ALCE;  LUNYANSKIY; Sondem; heyengel; forcdan; IRStone; gianliguori; Henryk Sadura; .shock; SNEHIT; alex9500; mpodrucki; KarenDMartin; mimadeo; SNEHIT; IRStone; lena_serditova ;  Friedberg; pixelABC; peshkov; Klaus Heidemann; photofang; frakala; Beboy; vacant; Noppasin; : Leonid Andronov; surangaw; dennisvdwater; Chris Lofty; Robert Kneschke; Gajus; chrisdorney; samografy; DOC RABE Media; vichie81; everythingpossible; Rafael Ben-Ari; Eisenhans; bakerjarvis; stokkete; hankimage9;