An anti-corruption clause in the contract is mandatory. Anti-corruption clause in the contract

Yarynka wrote:

Good afternoon. This is my first time encountering this. Maybe someone can tell me.
We provide services. We act under the contract as a Contractor. Organization “X” recently came to us to conclude an agreement. We provided them with our form. They signed it, but with a protocol of disagreements, in which they insisted on including an anti-corruption clause in the agreement, citing the fact that we are obliged to do this.

Scroll: Text of the proposed clause

The Contractor undertakes, as part of the execution of this agreement, to comply with the requirements of the applicable anti-corruption legislation and not to take any actions that may violate the norms of anti-corruption legislation or cause such a violation by the Customer, including not to demand, receive, offer, authorize, promise or 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 individuals or legal entities, including (but not limited to) commercial organizations, government and self-government bodies, government employees, private companies and their representatives.
If the Contractor violates the anti-corruption obligations set forth above, the Customer has the right to unilaterally suspend the fulfillment 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 has met this? How to politely refuse a Customer? How to respond to the protocol of disagreements? Consequences of refusal?

Often. You don't owe anything. There are requirements for various types of contracts established by law for their type and concerning the essence of these contracts and contractual relations.
Propose, in turn, a protocol for resolving disagreements where, in addition to what they proposed, include an alien invasion as force majeure circumstances, propose in the preamble on their part to write something like Romashka OJSC, which is a legal entity (which in itself will be such a priori), in person, full name, who is an individual, with a passport series No., etc. and so on, troll...

In general, the absence of such wording does not provide the counterparty with the right to commit corrupt acts, since they are prohibited by law and punishable. Suggest not to “clutter up” the contract with phrases that do not affect its subject, 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, nor does it make the given contract invalid due to its nullity.

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Question

The company is forced to sign an anti-corruption clause, is there a form for an 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 of a standard anti-corruption clause into contracts related to the economic activities of an organization” to the list of anti-corruption measures.

In other words, we are talking about a mandatory part of formalizing relations with a counterparty. There is no administrative liability for failure to include these clauses, but there are no grounds for refusal.

The rationale for this position is given below in the materials of the “Lawyer System” .

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

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

• to establish the legal obligations of the parties to the contract regarding 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*

"1. In fulfilling their obligations under the Agreement, the Parties, their affiliates, employees or intermediaries do not pay, offer to pay or authorize the payment of any money or property, directly or indirectly, to any persons for the purpose of influencing the actions or decisions of such persons for the purpose of 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 legislation applicable for the purposes of the Agreement as giving or receiving a bribe, commercial bribery, as well as actions that violate the requirements of applicable legislation and international anti-money laundering acts. ) proceeds from crime.

2. If the Parties suspect that a violation of any provisions of this Article has occurred or may occur, the relevant Party undertakes to notify the other Party in writing. In a written notification, the Party is obliged to refer to 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 or receiving a bribe, commercial bribery, as well as actions that violate the requirements of applicable legislation and international acts on combating the legalization of proceeds from crime. After written notification, the relevant Party has the right to suspend the performance of obligations under the Agreement until it receives confirmation that a violation has not occurred or will not occur. This confirmation must be sent within ten working days from the date of written notice.

3. If one Party violates the obligations to refrain from actions prohibited in this section and (or) the other Party fails 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 sending written notice of termination. The party on whose initiative the Agreement was terminated in accordance with the provisions of this Article has the right to demand compensation for actual damage arising as a result of such termination.”

At the same time, it is worth remembering the risks arising from the possible ambiguous interpretation of such provisions by 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, which requires Novo Nordix LLC to conduct an audit in case of doubt regarding the compliance of partners, as inconsistent with Russian competition law anti-corruption legislation.

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 entered into this employment contract as follows:

1. The employee is familiar with the Anti-Corruption Policy of OJSC 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. The employee, when performing his labor 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 authority, do not participate in commercial bribery or other unlawful use of your official position contrary to the legitimate interests of OJSC APZ Rotor for the purpose of free of charge or taking advantage of obtaining benefits in the form of money valuable papers, other property, including property rights, works or services of a property nature, for one’s own benefit or for the benefit of other persons, or to obtain advantages or achieve other illegal goals.

3. The Employee is obliged to notify the Employer if any persons contact 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 arising within the meaning of the Anti-Corruption Policy and legislation of the Russian Federation and to immediately notify the Employer of a conflict of interest that has arisen or of 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 the application of disciplinary sanctions), and also does not fail to 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 to provide confirmed information about corruption offenses at OJSC APZ Rotor.

The Employee's compliance with the principles and requirements of the Anti-Corruption Policy is taken into account when nominating the Employee for higher positions.

7. The employee is warned about the possibility of being brought to disciplinary, administrative, civil and/or criminal liability in accordance with the procedure established by the legislation of the Russian Federation 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 on compliance with the requirements of the Anti-Corruption Policy is an integral part of the Employment Agreement, drawn up in two copies having equal legal force. One copy of this agreement is kept by the Employer in the employee’s personal file, the second copy is kept by the Employee.

10. Details and signatures of the parties.

This Agreement comes into force from the moment it is signed and is valid until the obligations are fully fulfilled by both parties. 8.4. The Customer has the right to decide on a unilateral refusal to fulfill the Agreement in accordance with civil law in accordance with the provisions of parts 8 - 26 of Article 95 of the Federal Law of April 5, 2013 N 44-FZ “On the contract system in the field of procurement of goods, works, services for meeting state and municipal needs." 8.5. In case of violation of the terms of the Agreement by the Supplier, the Customer has the right to conduct an examination of the delivered goods with the involvement of its own or third-party experts and expert organizations. If, based on the results of the examination, the conclusion of an expert or expert organization confirms violations of the terms of the Agreement, the Customer decides to unilaterally refuse to fulfill the Agreement.

Taxes and law

It is drawn up in any form and must contain documents in accordance with clause 11.2.3 of Section II of the Auction Documentation) On the form of the order placement participant Ref. number To: The second part of the application for participation in an open auction in electronic form No. for the right to conclude an Agreement for

1. Brand name:
2. Information about the organizational and legal form:
3. Location:
4. Postal address (for a legal entity):
5. Full name, passport details, information about place of residence (for an individual):
6. Contact phone number:
7. E-mail address:
8. Participant's INN:
9. TIN (if any) of the founders, members of the collegial executive body, the person performing the functions of the sole executive body of a participant in such an auction:
10. Bank details.

Anti-corruption clause: how and why to include in contracts

In which documents and how to implement the anti-corruption clause? The ICC Anti-Corruption Clause is intended to be applied in any contract in which it is specified in full or by reference. The main purpose of the Clause is to provide for the Parties to the contract a condition that guarantees compliance with the rules of business ethics on the part of the counterparties in the pre-contractual period, during the term of the contract and even upon its completion. The inclusion of a Clause in a contract is possible in 3 ways: - Short text and incorporation - by reference to Part I of the ICC Anti-Corruption Rules 2011 (Option I), - Incorporation of the entire text of Part I of the ICC Anti-Corruption Rules 2011 into the contract (Option II ), - Reference to the corporate compliance program to ensure compliance with anti-corruption requirements, as provided for in Article 10 of the ICC Anti-Corruption Rules (Option III).

Anti-corruption clause in a contract: sample, is it mandatory?

This provision applies in particular to liability in the form of administrative penalties under sections 130 and 30 of the Law on Administrative Offenses (OwiG – Ordnungswidrigkeitsgesetz) and - in the case of members of the executive body of a company - to civil liability under section 43(2) of the Law on Limited Companies liability and Article 93(2) of the Law on Joint Stock Companies (Aktiengesetz). In order to reduce the risk of liability, such clauses should be accompanied by other elements of an effective compliance system (thorough due diligence of the business partner, training courses, frequent audits). To apply or not to apply? Even in cases in which the anti-corruption clauses included in the text of the agreement are likely to be invalid if a dispute arises, the parties to the agreement to which they relate must take them seriously.

Anti-corruption clause in a construction contract

It is strongly recommended that the company report through available official and unofficial channels about such attempts, unless such reporting of circumstances was counterproductive. 3) Abuse of influence for personal gain - inducement or offer to obtain unlawful benefits in order to exert unlawful perceived or real influence on a civil servant for the purpose of undue advantage in favor of the original initiator of these actions or any other person. 4) Laundering of proceeds - from the corrupt practices listed above, or concealment of the criminal origin, deposit, source, method of disposal, movement or ownership, if it is known that this property was obtained due to the commission of a crime.

Auction documentation in electronic form

Such clauses can represent a meaningful addition to the overall compliance framework, as long as the risk of invalidity is taken into account. Reservations can help raise awareness of the need to meet certain standards. In this regard, an unambiguous requirement for compliance with a number of statutory rules in relation to the right of a canceled agreement may be extremely “sensitive” to the provisions of the agreement. In particular, a medium-sized company is a key link in the Russian industry, but until recently it was deprived of the opportunity to fully familiarize itself with the issue of compliance, due to which there was often a lack of understanding of the legal legislative prerequisites regarding competition and corruption crimes.

400 bad request

If a Party suspects that a violation of any provisions of the previous Article has occurred or may occur, the relevant Party undertakes to notify the other Party in writing. In a written notification, the Party is obliged to refer to facts or provide materials that reliably confirm or give reason to assume 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 receiving a bribe, commercial bribery, as well as actions that violate the requirements of applicable legislation and international acts on combating the legalization of proceeds from crime.

Addiction in medicine

Recently, in my work, I have increasingly come across the fact that contracts have begun to include an anti-corruption clause. Usually it is included in the text of the contract at the initiative of one of the parties to the contract. When checking contracts, I also receive proposals and even demands from counterparties to include such a clause in the contract.

Often its inclusion is fundamental and without it the counterparty refuses to enter into an agreement. Earlier in 2014, I encountered such a situation only when agreeing (drawing) contracts, when one of the parties was a company with foreign origin (investor) related to the western part of the world. For them, the presence of an anti-corruption clause was fundamental and unconditional.

Anti-corruption clause in the service contract

Article 13.3 of 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 specifies an indicative 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 organization. This norm has been in effect since 2013. With a literal interpretation of this norm, it follows that each organization independently determines how and in what way it will combat corruption, but is not obliged to do this only by developing and implementing standards and procedures aimed at ensuring the integrity of the organization or taking this measure simultaneously in the aggregate with other countermeasures.

Anti-corruption clause in the service contract

Attention

After written notification, the relevant Party has the right to suspend the performance of obligations under the Agreement until it receives confirmation that a violation has not occurred or will not occur. This confirmation must be sent within ten working days from the date of written notice. 8. Other conditions 8.1. When concluding and executing the Agreement, changes in its terms are not permitted, except for the cases provided for in Articles 34 and 95 of the Federal Law of April 5, 2013.

No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.” In this case, all changes and/or additions to the Agreement are made by signing additional agreements by the Parties, which are an integral part of it. 8.2. This Agreement has been drawn up in two identical copies, one for each party.
8.3.

Anti-corruption clause in a service contract sample 2016

This document at the time of writing this article (2015) was not 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 to prevent and combat corruption in organizations, regardless of their forms of ownership, organizational and legal forms, industry affiliation and other circumstances. The methodological recommendations do not apply to government bodies, as well as government funds and organizations.
Methodological recommendations have also been developed for organizing activities to prevent and combat corruption within an organization, but with the goal of standardizing the state’s anti-corruption policy. Within your organization, guided by these recommendations, you can develop local regulations that are mandatory for your company’s employees.