Anti-Bribery Compliance Certificate
(Third-Party Intermediaries)

Summary

This anti-bribery compliance certificate is a template made by third-party intermediaries (such as a consultant, contractor, representative, or agent), which provides certification to a company of the third party’s compliance with anti-bribery and anti-corruption laws and regulations, including the U.S. Foreign Corrupt Practices Act (FCPA) and the UK Bribery Act (UKBA). This template includes practical guidance and drafting notes. A standard best practice used by companies in managing their anti-bribery compliance programs is to obtain written certificates from third-party intermediaries regarding compliance with anti-bribery laws and company policies that apply to their engagements. Accordingly, a company’s decision to follow this practice will be a favorable factor when regulators assess the effectiveness of a company’s anti-bribery compliance program under the FCPA, the UKBA, and any other applicable anti-bribery laws. Under many anti-bribery laws, companies can be liable for violations that third parties commit while performing services for or, on behalf of, the companies. Accordingly, the primary reasons that companies should follow the best practice of obtaining compliance certificates from their third parties are to: (1) verify that each of the third parties has complied with applicable anti-bribery laws as well as anti-bribery covenants and representations and warranties contained in the respective agreements the third parties executed with the companies when the third parties were engaged; and (2) to demonstrate the company’s ongoing monitoring of the third parties’ conduct during their engagements. It is a good practice for companies to obtain new certificates from each of their third parties at least annually; however, the frequency of obtaining compliance certifications from each third party should vary based on the company’s assessment of the level of risk that anti-bribery violations may occur during the respective engagements. Some factors the company should consider when assessing the risk that a third party may commit anti-bribery violations during an engagement include: • The level of corruption in the third party’s home country and, if different, the country or countries where the third party will perform services for the company. Transparency International’s Corruption Perception Index is a common resource companies use to understand the level of public sector corruption in each country. —and— • The extent to which company representatives will participate in or oversee activities performed by the third party on behalf of the company. This certificate can be used in conjunction with a broad range of commercial agreements used by companies to engage third parties. Drafters should modify the language in this template, as necessary, to address the specific types and level of risks for each engagement. For more information regarding the FCPA and UKBA, see Foreign Corrupt Practices Act (FCPA) and UK Bribery Act.