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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. When performing 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 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 the 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 confirmation is received 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, sending written notice about 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 in relation to Novo Nordix LLC, in which it recognized the anti-corruption clause as inconsistent with Russian competition law, which implies an audit by Novo Nordix LLC in case of doubt regarding compliance by partners anti-corruption legislation.

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 execute 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.

I approve

CEO

______p/p_______V.V. Konovalov

Order No. __525__ dated _21___11___2014

Agreement

on compliance with the requirements of the Anti-Corruption Policy of the Open Joint Stock Company Altai Instrument-Making Plant Rotor

Barnaul "___" _________ 2014

open joint-stock company"Altai instrument-making plant" Rotor ", hereinafter referred to as the "Employer", represented by ____________________________, acting on the basis of _____________________________________________ on the one hand, and ________________________, hereinafter referred to as the "Employee", have concluded this employment contract as follows:

1. The employee is familiar with the Anti-Corruption Policy of JSC APZ “Rotor” approved by Order No. ___ dated __________ 2014 (hereinafter referred to as the Anti-Corruption Policy), and undertakes to comply with the requirements established by the Anti-Corruption Policy.

2. An employee in the performance of his job duties under the Employment Agreement, in accordance with the Anti-Corruption Policy, undertakes not to commit corruption offenses, i.e. – do not give bribes (do not mediate in bribery), do not abuse powers, do not participate in commercial bribery or other illegal use of one’s official position contrary to the legitimate interests of OAO APZ "Rotor" for the purpose of gratuitous or using the advantage of obtaining benefits in the form of money, valuable papers, other property, including property rights, works or services of a property nature, for their own benefit or for the benefit of other persons, or for the treatment of benefits, the achievement of other unlawful goals.

3. The Employee is obliged to notify the Employer if any persons apply to him in order to induce him to commit corruption offenses, as well as in cases where the Employee becomes aware that organization (preparation) and / or committing corruption offences.

4. The employee is obliged to take measures to prevent any possibility of a conflict of interest in the understanding of the Anti-Corruption Policy and legislation Russian Federation and immediately notify the Employer of the conflict of interest or the possibility of its occurrence, as soon as he becomes aware of it.

5. The Employee is aware that the Employer does not subject him to penalties (including disciplinary actions), and also does not accrue bonuses (other payments) or accrue bonuses (other payments) in a smaller amount in relation to the maximum possible amount, if the Employee informed the Employer about the alleged fact of a corruption offense.

6. The employee is aware that the Employer encourages employees for providing confirmed information about corruption offenses at JSC APZ Rotor.

Compliance by the Employee with the principles and requirements of the Anti-Corruption Policy is taken into account when the Employee is nominated to fill higher positions.

7. The employee is warned about the possibility of involvement in established by law Russian Federation in order to disciplinary, administrative, civil and / or criminal liability for violation of anti-corruption requirements provided for by the legislation of the Russian Federation, as well as the Anti-Corruption Policy.

8. This agreement on compliance with the requirements of the Anti-Corruption Policy comes into force on "___" _________ 2014, and is valid until the termination (termination) of the employment contract No. ____ dated "___" _______________ 2014.

9. This agreement to comply with the requirements of the Anti-Corruption Policy is an integral part of employment contract, drawn up in two copies, having the same legal force. One copy of this agreement is kept by the Employer in the employee's personal file, the second copy - by the Employee.

10. Details and signatures of the parties.

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 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-commitment 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.

Recently, more and more often in my work I come across the fact that they began to include an anti-corruption clause in contracts. Usually it is included in the text of the treaty at the initiative of one of the parties to the treaty. When checking contracts, I also receive proposals and even requests from counterparties to include such a clause in the contract. In most cases, its inclusion is fundamental and without it, the counterparty refuses to conclude an agreement.

Earlier in 2014, I encountered such a situation only when agreeing (development) of contracts, when one of the parties was a company with a foreign origin (investor) related to the western part of the world. For them, the existence of an anti-corruption clause was fundamental and unconditional.

The clause in its content had a reference to the anti-corruption legislation of a foreign state. Despite objections regarding the existence of this clause, it was still included as it was beneficial and / or necessary to conclude an agreement with such a counterparty. As it usually happens, commerce wins over common sense: we get the money now, but it is not known whether there will be problems or not, and if there are, it is not known when. Well, what can I say, whose risks he makes the decision.

In 2014, similar proposals/requirements began to come from Russian companies. Russian companies the need for an anti-corruption clause was either not motivated in any way, or referred to internal politics companies, or explained by the fact that the Federal Law No. 273-FZ "On Combating Corruption" of December 25, 2008, was supplemented by Article 13.3, which obliges organizations to develop and apply measures to prevent corruption, namely, to develop and implement standards and procedures, aimed at ensuring the conscientious work of the organization. Also, in support of the need, the counterparties refer to the “Methodological recommendations for the development and adoption of measures by organizations to prevent and combat corruption” developed in pursuance of subparagraph “b” of paragraph 25 of the Decree of the President of the Russian Federation dated April 2, 2013 No. 309 “On measures to implement certain provisions federal law"On Combating Corruption" and in accordance with Article 13.3 of the Federal Law of December 25, 2008 No. 273-FZ "On Combating Corruption".

We figure out whether an anti-corruption clause in the contract is mandatory or not:

1. Federal Law No. 273-FZ "On Combating Corruption" dated December 25, 2008

Article 13.3 of the Federal Law No. 273-FZ "On Combating Corruption" dated December 25, 2008, contains the obligation of organizations to develop and take measures to prevent corruption and it indicates an approximate list of measures to prevent corruption, one of which is the development and implementation of standards and procedures aimed at ensuring the integrity of the work of the organization. This regulation has been in effect since 2013.

With a literal interpretation of this rule, it follows that each organization independently determines how and in what way it will counteract corruption, but is not obliged to do this only by developing and implementing standards and procedures aimed at ensuring the fair work of the organization or taking this measure simultaneously in the aggregate with other countermeasures. It also follows from this norm that it is focused on organizing the fight against corruption within the organization, but not between organizations, and this is correct. Each organization is obliged to independently control the prevention of manifestations of corruption in its own organization, as well as its employees when entering into relationships with third parties. Another thing is when organizations entering into civil law relations with each other and concluding an agreement, prescribe an anti-corruption clause in it.

An anti-corruption clause is one of the anti-corruption measures, but it requires the will of both parties, and one of the parties may express a desire not to indicate this clause in the contract and this is its right.

Refusal, first of all, can be caused by different anti-corruption policies applied in organizations, common standard No, everyone implements the requirements of the law in their own way. A legal or natural person may refuse to indicate an anti-corruption clause, not wanting to confuse anti-corruption legislation and a transaction, because although they are closely related, they are still different legal relationships. In order to comply with anti-corruption legislation, the parties to the contract are not required to assume additional obligations to each other and / or third parties and bear responsibility for it. Perhaps my reasoning and bad manners, but in the implementation entrepreneurial activity in a state of law, those who implement it are obliged to comply with the law, and not the imposed will of other persons.

2. "Methodological recommendations for the development and adoption by organizations of measures to prevent and combat corruption" (hereinafter - Methodological recommendations).

This document at the time of writing this article (2015) has not been officially published and is posted on the website of the Ministry of Labor and Social Protection of the Russian Federation. The purpose of the Methodological Recommendations is to form a unified approach to ensuring work on the prevention and counteraction of corruption in organizations, regardless of their forms of ownership, organizational and legal forms, industry affiliation and other circumstances. Guidelines do not apply to government bodies as well as government funds and organizations.

Methodological recommendations have also been developed to organize measures to prevent and combat corruption within the organization, but with the aim of standardizing the anti-corruption policy of the state. Within your organization, guided by these recommendations, you can develop local acts that are mandatory for employees of your company. In the Methodological Recommendations, as a measure to combat corruption, it is really recommended to introduce a standard anti-corruption clause into contracts related to the economic activities of an organization (Section IV, Table No. 1), but as an example. What is a standard anti-corruption clause is unknown, and recommended does not mean mandatory.

If the management of the organization uses the Methodological Recommendations or considers them mandatory for use within its organization, then it has the right to do so, but it does not have the right to impose the inclusion of an anti-corruption clause in the contract concluded with the counterparty, especially with the presence in its text of the obligation to comply with the Methodological Recommendations. right.

Therefore, a company that has local acts of anti-corruption content or a company that is going to create such acts should be wary of the presence in them of the obligation to include an anti-corruption clause in contracts. Otherwise, if an agreement is concluded with a “profitable” counterparty, the agreement will not be signed if the counterparty is against the anti-corruption clause, or the agreement will be signed without the presence of an anti-corruption clause in it, and then local acts will be violated if they provide for the presence of an anti-corruption clause in the agreement.

3. Why include an anti-corruption clause in the contract:

– As one of the ways to comply with the current anti-corruption legislation.

– Manifestation by the company's management of high moral principles and civil responsibility in the fight against corruption. It depends on the personal worldview of the head (s) of the company, and not on the existence of such an obligation in the legislation.

- As an event, the occurrence of which entails legal implications(termination of the contract, payment of fines, payment of compensation, etc.), usually negative for the party in which such an event occurred.

And so, what do we know about the anti-corruption clause:

1. The current legislation of the Russian Federation does not provide for the obligation of business entities to comply with anti-corruption laws when entering into relationships with each other by including any anti-corruption clauses in the contract.
2. The current legislation of the Russian Federation does not establish the obligation to include any anti-corruption clauses in the contract as a basis for the emergence, change and termination of obligations.
3. In the Russian Federation, any actions (inaction) by individuals and legal entities must be performed (refrain from doing them) in accordance with the current legislation, therefore, an additional indication of the need to comply with an obvious fact already established and enshrined in law is not required. Regardless of whether an anti-corruption clause is included in the contract or not, business entities are required to comply with anti-corruption legislation. But in the absence of an anti-corruption clause in the contract, business entities are guided only by the rules of law and are liable to the state, and if it is present in the contract, business entities, in addition to the rules of law, will have to be guided by the terms of the anti-corruption clause and be liable for its violation to each other.
4. The fact of the presence of an anti-corruption clause in the contract, and the consequences in the event of the events indicated in it, requires the mandatory and clear execution of its conditions, since it is one of the conditions or part of the contract.
5. If the anti-corruption clause contains a reference to a document, for example, to the Methodological Recommendations or another document, which the parties are obliged to follow in order to fulfill the anti-corruption clause, the parties will be obliged to be guided by this document in their activities, since by signing an agreement with the presence of such an anti-corruption clause in it voluntarily made such a commitment.

As a result, about the presence of an anti-corruption clause in the contract: individuals with and without the status of an individual entrepreneur, as well as legal entities, must comply with anti-corruption legislation, but they are not required to prescribe an anti-corruption clause in contracts concluded with each other.