Yarinka wrote:

Good afternoon. This is the first time I'm meeting this. Maybe someone will tell.
We provide services. We act under the contract as a Contractor. The organization "X" came to us recently to conclude a contract. We gave them our form. They signed it, but with a protocol of disagreements, in which they insist on including an anti-corruption clause in the contract, arguing that we are obliged to do this.

Scroll: Text of the proposed reservation

The Contractor undertakes, within the framework of the execution of this agreement, to comply with the requirements of the applicable anti-corruption laws and not take any actions that may violate the anti-corruption laws or cause such a violation by the Customer, including not demanding, not receiving, not offering, not authorizing, not promising and not make illegal payments directly, through third parties or as an intermediary, including (but not limited to) bribes in cash or any other form, to any person or entity, including (but not limited to) commercial organizations, government and self-government bodies, civil servants, private companies and their representatives.
In case of violation by the Contractor of the above anti-corruption obligations, the Customer has the right to unilaterally suspend the performance of its obligations under this agreement until the causes of such violation are eliminated or refuse to perform the agreement by sending a written notice.

Who met with this? How to politely refuse a customer? What to answer to the protocol of disagreements? Consequences of rejection?

In general - The absence of such a wording does not give the counterparty the right to commit corrupt acts, because they are prohibited by law and punishable. Suggest not to "litter" the contract with phrases that do not affect its subject matter, essence and execution, especially in the case when their presence (prescription) / absence in no way affects either the subject or the essence of the contract, or the will of the parties, etc. ., the requirement to establish this kind of wording is not established by law and their absence in the contract is not a violation, and also does not invalidate this contract due to its nullity.

Anti-corruption provisions in labor contracts of employees (sample)

The primary task of the employer when including anti-corruption provisions in the employment contracts of employees is to prevent corruption offenses on the part of employees related to giving or offering a bribe, committing commercial bribery, illegal benefits for themselves and their relatives. The anti-corruption policy at the enterprise is an element of legal culture both on the part of the employer and on the part of employees.

Anti-corruption clause in the employee's employment contract (sample)

The inclusion by the employer in all employment contracts with employees of an anti-corruption clause is part of the measures aimed at complying with the legislation on corruption.

In addition to anti-corruption provisions in the employment contracts of employees, organizations are recommended to develop and approve a code of ethics and official conduct of employees in the organization, as well as to implement special anti-corruption procedures, including filling out a declaration of conflict of interest, rotation of employees whose official position may influence decision-making or be related to receiving money and other material assets (benefits, advantages) in the performance of official duties.

The obligation to take and develop measures in your company aimed at preventing corruption is regulated by Federal Law No. 273-FZ of December 25, 2008 “On Combating Corruption” .

At the same time, the legislator provides organizations with freedom both in terms of developing special anti-corruption procedures and in terms of formulating anti-corruption provisions in contracts, both civil and labor, so there are no official samples of such documents. Here is an example of an anti-corruption clause in employment contract worker.

Sample employment contract with an anti-corruption clause

Anti-corruption procedures

Among the anti-corruption measures in the organization are the following:

• the use of an anti-corruption clause in the employee's employment contract. Such a clause, as a rule, implies the obligation of the employee not to commit and, if possible, to prevent possible corruption offenses; the obligation to notify the employer of the fact of a corruption offense and the possible circle of persons involved in it; the employee's right to remuneration for providing such information; failure to bring an employee to disciplinary liability in the event of reporting the fact of a corruption offense and non-application of criminal prosecution measures in the event of a proven fact of participation and violation of the provisions of the legislation on corruption;
• training of employees, including familiarization of all employees with the legal regulation in the field of combating corruption in general, including international and at the enterprise in particular; explanations of the legislation; prevention; consideration of practical situations;
• anti-corruption measures in hiring. First of all, such measures are aimed at preventing conflicts of interest associated with the possible subordination of the employee’s relatives or members of his family or, for example, the participation of relatives in decision-making that can bring unreasonable material benefits to the employee, etc.

AT recent times the fight against corruption has become part of public policy. In this regard, the practice of including so-called anti-corruption clauses in contracts has spread. The question arises whether it is necessary to indicate such a clause in the contract and, if so, what it can be.

background

Belarus, together with other European countries, is a party to the Council of Europe Civil Law Convention on Corruption. This Convention obliges to fix in the national legislation, in particular, the following rules:

— on the invalidity of transactions related to corruption crimes<*> ;

— that the party to the transaction, whose consent was violated by an act of corruption, has the right to apply to the court in order to recognize the transaction as invalid<*> ;

— about full compensation to the party of the transaction for the damage suffered by it as a result of corruption<*> ;

- on the right of persons who have suffered damage as a result of an act of corruption by public officials to demand compensation for damage from the state<*> .

On a note
Damage from an act of corruption is compensable when<*> :
1) the defendant committed or authorized the act of corruption or failed to take reasonable steps to prevent the act of corruption;
2) the plaintiff has suffered damage;
3) there is a causal relationship between the act of corruption and the damage done.

This Convention formed the basis of the policy of European states in the field of combating corruption.

Corruption "in Belarusian"

Belarusian legislation classifies the following actions as corruption<*> :

In particular, in pursuance of the Council of Europe Civil Law Convention on Corruption, Belarus has introduced measures to protect persons who have been harmed by acts of corruption. Such damage shall be compensated in full by the person who caused it.<*> .

As for transactions made under the influence of corruption or the so-called “kickbacks”, the analysis of the Civil Code shows that there are no norms in the Belarusian legislation that directly recognize them as invalid.

Such a possibility can still be seen in a number of articles of the Civil Code<*>subject to the expansion of their interpretation by the courts. But this may not always be correct from the point of view of the construction of these articles. Perhaps for this reason, there is currently no wide judicial practice on the invalidation of transactions related to corrupt practices.

Today, the opinion is often expressed that it should be a rule to prescribe in contracts the obligation “not to participate in corruption schemes”. Rather, it is an attempt to introduce an understanding that bribes are bad, that this is not welcomed by the business community.

Mandatory anti-corruption clause

Each organization must apply measures to prevent manifestations of corruption. In particular, the legislation defines the following measures<*> :

— planning and coordinating anti-corruption activities;

— establishment of restrictions, as well as special requirements aimed at ensuring financial control in relation to the officials of the organization.

With a literal interpretation of this norm, it follows that each organization, within the framework of the above measures, independently determines how and in what way it will counteract corruption. Moreover, there is no direct indication that organizations are required to include anti-corruption clauses in contracts.

It also follows from this norm that it is focused on organizing the fight against corruption within the organization, but not between organizations. And it is right. Each organization is obliged to independently control the prevention of manifestations of corruption in itself, its employees when entering into relationships with third parties. Another thing is when organizations, entering into civil law relations with each other, conclude an agreement.

The fundamental principle of the conclusion of the contract is its freedom<*>. This means that entrepreneurs are free to decide with whom, about what, to what extent and under what conditions to enter into contractual relationship. Coercion to conclude a contract is not allowed unless it is provided for by law or a voluntarily accepted obligation.<*> .

Note!
The inclusion of an anti-corruption clause in the contract requires the will of both parties. Any of them can express a desire not to indicate this clause in the contract, and this is her right.<*> .

It should be noted that in order to comply with anti-corruption legislation, the parties to the contract are not required to assume an obligation to comply with it. This obligation is established by law. If it is proved that any persons participated in corruption schemes, then they are liable under the current criminal law.

Anti-corruption clause in the contract

Although an anti-corruption clause is not mandatory, it is sometimes advisable to include it. The reasons for this may be, for example, the following:

— an organization's choice to include a clause as a way of complying with anti-corruption laws;

— manifestation by the management of the organization of high moral principles and civil responsibility in the fight against corruption;

- the desire to make a violation of anti-corruption legislation an event, the occurrence of which entails negative consequences for the party that violated it. For example, termination of the contract, payment of fines, compensation, etc.

If the parties agreed on the need to include an anti-corruption clause in the contract, then it can be formulated as follows:

“The parties confirm that they are aware of the requirements of legislative and other regulatory legal acts of the Republic of Belarus on combating corruption (hereinafter referred to as anti-corruption requirements). The Parties undertake to ensure compliance with anti-corruption requirements and non-commission of corrupt actions in the performance of this Agreement by their employees, representatives, affiliates, as well as subcontractors and other counterparties involved by them for the execution of this Agreement. Within the framework of this Agreement, corruption means the actions specified in par. 2 and 3 h. 1 tbsp. 5 of the Law of the Republic of Belarus of July 15, 2015 N 305-З "On the fight against corruption".

If a Party suspects that a violation of any of the provisions of this paragraph has occurred or may occur, the relevant Party undertakes to notify the other Party in writing. In a written notice, the Party shall refer to the facts or provide materials that reliably confirm or give reason to believe that a violation of any provisions of this paragraph has occurred or may occur.

In the event that one Party violates its obligations to refrain from acts of corruption and (or) the other Party fails to receive confirmation within ten days that the violation has not occurred or will not occur with the attachment of documents confirming this fact, the other Party has the right to cancel this Agreement unilaterally by sending the appropriate written notice to the first Party.

The Party that violated the anti-corruption requirements and (or) did not ensure the non-commission of corrupt acts in the performance of this Agreement by its employees, representatives, affiliates, as well as subcontractors and other counterparties involved by them for the execution of this Agreement, is obliged to compensate the other Party for the losses incurred as a result of this losses. The procedure for compensation for losses is determined by the current legislation of the Republic of Belarus.

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Question

The company is forced to sign an anti-corruption clause, is there a form of official refusal to sign?

Answer

From January 1, 2013, all organizations are required to develop and implement anti-corruption measures (Article 13.3 of the Federal Law of December 25, 2008 No. 273-FZ). At the same time, the Methodological Recommendations also include “Introduction to agreements related to economic activity organization, a standard anti-corruption clause.”

In other words, we are talking about an obligatory part of formalizing relations with a counterparty. There is no administrative responsibility for not including these reservations, but there are no grounds for refusal.

The rationale for this position is given below in the materials of "Systems Lawyer" .

2. Introduction into contracts related to the economic activity of the organization, a standard anti-corruption clause

Methodological recommendations follow the path of the experience of English legislation (UK Bribery Act). It is based on the inclusion in contracts with counterparties of the so-called anti-corruption clauses, which are aimed at:

• to establish the legal obligations of the parties to the agreement on anti-corruption behavior;
• to create a legal framework for monitoring counterparties for compliance with anti-corruption legislation.

An example of a standard anti-corruption clause that can be included in contracts with counterparties*

"one. In the performance of their obligations under the Agreement, the Parties, their affiliates, employees or intermediaries do not pay, do not offer to pay, and do not allow the payment of any Money or valuables, directly or indirectly, to any person to influence the actions or decisions of those persons in order to obtain any improper advantage or other improper purpose. When fulfilling their obligations under the Agreement, the Parties, their affiliates, employees or intermediaries do not carry out actions qualified by the applicable law for the purposes of the Agreement as giving or receiving a bribe, commercial bribery, as well as actions that violate the requirements of applicable law and international acts on combating legalization (laundering ) proceeds from crime.

2. If the Parties suspect that a violation of any of the provisions of this Article has occurred or may occur, the Party concerned shall notify the other Party in writing. In a written notice, the Party is obliged to refer to the facts or provide materials that reliably confirm or give reason to believe that a violation of any provisions of this Article has occurred or may occur by the counterparty, its affiliates, employees or intermediaries, expressed in actions qualified by applicable law as giving or taking a bribe, commercial bribery, as well as actions that violate the requirements of applicable law and international acts on combating the legalization of proceeds from crime. Upon written notice, the respective Party shall have the right to suspend the performance of its obligations under the Agreement until it receives confirmation that a breach has not occurred or will not occur. This confirmation must be sent within ten working days from the date of sending the written notice.

3. In case of violation by one Party of obligations to refrain from actions prohibited in this section and (or) failure by the other Party to receive confirmation within the period established by the Agreement that the violation has not occurred or will not occur, the other Party has the right to terminate the Agreement unilaterally in whole or in part, by giving written notice of termination. The Party on whose initiative the Agreement was terminated in accordance with the provisions of this Article shall have the right to demand compensation for real damages resulting from such termination.

At the same time, it is worth remembering the risks arising from the possible ambiguous interpretation of such provisions by the regulatory authorities.

Thus, the Federal Antimonopoly Service issued Order No. 1 10/91-10 against Novo Nordix LLC, in which it recognized an anti-corruption clause that does not comply with Russian competition law, which implies an audit by Novo Nordix LLC in case of doubt regarding compliance by partners anti-corruption legislation.