Wallem Group of Companies
Anti-Bribery Policy - Frequently Asked Questions
Question 1:How will I know whether certain gifts, hospitality or expenses comply with this anti-bribery policy? Has any threshold been considered as “normal and appropriate” regarding hospitality and promotional expenditure?
The laws do not intend to prohibit hospitality or similar business expenditure that is reasonable and proportionate. The standards or norms applying to a particular division or geographic location will be taken into consideration when deciding what is normal and appropriate. There is no threshold to this. Generally, the higher the expenditure and the more lavish the hospitality or expenditure provided to a third party (regardless if the party is an official of government or someone in private sector), the greater the possibility that it is intended to influence the party to grant business or a business advantage in return.
The following points should be borne in mind when considering whether gifts and hospitality comply with this company’s anti-bribery policy:
- Follow guidelines and procedures provided by the subjected Principal if they are available;
- If a guideline and procedure is not available, determine if the hospitality and promotional expenditure is proportionate to the business volume of the Principal and whether it is within the standard of expenditure at your location;
- Appropriate to the business relationship with the recipient;
- Compliant with local laws and customs (the custom must have been recognised by the written local law or a published judicial decision);
- Do not place the recipient under any obligation or create any expectations;
If you are in any doubt about any of the above then you need to seek advice from your immediate manager or your managing director.
Question 2:I was told by a local port official that my vessel could have a long list of deficiencies but he can clean it up if we can offer him some money. This is just a routine payment whenever we route through this port. Can I pay him to avoid any unnecessary delays and make my vessel depart on time? If cash is not allowed, how about something from my bonded stores that is worth just as much?
This kind of “grease payment” would be considered a facilitation payment and is strictly prohibited unless such payments are permitted under the local written law. Payments in cash or in any other form of inducement are also prohibited. You should present the Wallem Group policy to the official and decline from making any payment.
Principals who believe that they are not subject to any anti-bribery laws might instruct the Master to pay. In this situation written instruction and authorization must be obtained from the Principal. You should also request the receipts and identification details of the official, and report the information to the Superintendent.
Question 3:We regularly provide dinners, ceremonial souvenirs and overseas visits to our Principals to maintain a good relationship. Occasionally we provide a gift at a higher value or a large party to celebrate a new joint-venture business or when there are new vessels that join our ship management company. Will these type of entertaining expenses be allowed under anti-bribery laws?
As mentioned in the Anti-Bribery Policy, normal level of hospitality and promotional expenditure is allowed if it is proportionate to the volume of business and is in moderation. Dinner at a reasonable cost, a ceremonial souvenir of small value, or providing a normal business trip to a number of the key employees of a Principal to visit our office should be allowed.
However, it may give a perception of bribery if these entertainment expenses are made too often or if an extravagant item or event is provided. These expenses may include but are not limited to having "wining and dining" at an expensive restaurant with a large bill for alcohol, offering expensive sport event tickets, or inviting employees of a Principal or local officials and their family members for luxury overseas travel.
If the hospitality or entertainment provided to a client or Principal coincides with the negotiation for a high value business contract then this should be avoided. In general, any hospitality should reflect a desire to cement good relations and show appreciation and promotional expenditures should seek to improve the image of Wallem and to better present our services. Management must ensure that these expenses will not give the recipient an impression that they are under an obligation to confer any business advantage or that the recipient’s independence will be affected.
Question 4:It is very common to give “red packet” money during Chinese New Year to people such as our subordinates, the employees of our agents and subcontractors, employees of Principals and clients, and sometimes the official of the local government or port authority. Does the giving of “red packet” money violate the anti-bribery laws?
The giving of “red packet” money to people during Chinese New Year would generally be considered as normal social activity providing that the money is very immaterial and the intention of paying such money is not to influence the recipient in the performance of his or her functions or in return for other rewards. However, paying “red packet” money to an official during official dealings could be considered an offence to the local law in some countries.
Question 5: We arrange officials of the Immigration Bureau to provide an overseas clearance service which requires the officials to attend a cruise onboard before the vessel arrives in the port.
We agree in advance with the local Immigration Bureau to provide a small sum of cash allowance to each of these officials for purchasing food or refreshment. Does this practice violate the anti-bribery laws?
In general, this kind of cash allowance to the officials of local government should be prohibited because it gives a perception of facilitation payment and violates the Anti-Bribery Policy of Wallem Group. However, it would be allowed if the local Immigration Bureau was recognised by the written local law or a published judicial decision that it has the authority to endorse such agreement, and the offering of cash allowance to the official does not constitute any violation of the local laws.
Question 6: What should an employee do if he / she is asked by a Principal to sponsor a cash voucher of HK$10,000 for the purpose of celebrating their annual dinner?
There is no threshold or guideline stated in the anti-bribery laws to indicate the appropriate value of promotion expenditure and hospitality. Management should assess if the level of donation is within a normal level and whether it is proportionate to the volume of business of the Principal. In general, offering a reasonable gift or a donation to a Principal for the celebration of a special occasion should be allowed. The management should ensure that such donation will not give the recipient an impression that they are under an obligation to confer any business advantage or that the recipient’s independence will be affected.
Question 7: We engage a local port agent for port services. They have a better connection with the local port authority and they ask for a fee to assist the vessel to obtain the necessary clearances from the port authority efficiently. Is this payment acceptable under the anti-bribery laws?
The payment will be acceptable if it is a recognized and official fast-track process and if it is publicly available to all on the payment of a fee. This fee will otherwise be considered as a facilitation payment and will be prohibited by law and by this Policy.
A number of our Principals are subject to their own anti-bribery laws directly and require Wallem to comply with the laws and their policies. Wallem is required to ensure that the agent and subcontractor of Wallem will acknowledge and comply with these requirements and the laws. You should instruct the agent not to make the payment if it could be considered as a facilitation payment.
Question 8: It is very common in the shipping industry to pay a commission to a middleman for the introduction of a new business. Will such payment be allowed under the anti-bribery laws?
Although paying commission to a middleman is a common practice in the shipping industry, management should conduct due diligence in each case in order to assess:
- Who is the recipient of the commission and is he / she familiar with the industry? Does he / she have any connection with the local government / government agent / or state-owned business and whether such connection would constitute a perception of bribery?
- What services did the middleman actually provide in the process?
- Does the commission rate align with the prevailing market rate? If it is higher than the market practice, what is the purpose of the additional commission and who is the actual recipient?
Whether the commission is allowed under the anti-bribery laws will depend on such an assessment. Management could seek legal advice before proceeding with such a payment.
Question 9: A Charterer instructs the Master to pay a PSC inspector a small amount of cash in order to get a port clearance. The Superintendent is informed by email regarding the payment. What should the Superintendent respond to this and will the Superintendent or the Master be personally liable?
The Superintendent should present the group policy to the Charterer. He should also request the Master not to make the payment and inform the PSC inspector that facilitation payment is prohibited. The Superintendent and the Master should demonstrate that they have advised the Charterer the facilitation payment violated the Group Policy and they should not be held liable if they did not authorize the facilitation payment.
Question 10: An official informs the Master that a number of deficiencies were identified during the vessel inspection but he doesn’t request directly for money or any advantages. We have the experience that if we pay him some money he will issue the clearance and it is a very common practice in this port. What action the Master should take?
The Master should address the deficiencies and assess the potential cost of delay. He should communicate the situation to the Charterer, the Principal and his reporting Superintendent. No payment or any advantage should be provided to the official.
Question 11: The Master of a vessel was instructed to pay a facilitation payment at a port in Argentina. The Ship Manager, Ship Owner and the Charterer are not a UK company. How would the prosecution take place against the parties involved?
If the person who authorized the facilitation payment is a British citizen or holding a British passport, he or she is subjected to the UK Bribery Act and will be personally liable for the offense. If any of the parties has any business operations in UK then the company could be subjected to the Act and it may be prosecuted because of the facilitation payment and the failure to prevent bribery.
Question 12: Would it be allowable if we pay an official the facilitation payment and record in the books as “entertainment” or “hospitality” expenses? Would it be acceptable if we pay through a port agent?
Whether giving an advantage to an official would be considered as a facilitation payment or just an entertainment or hospitality cost depends on the intention of the payment. It will be a violation to this policy and the law if the payment is to influence the decision of an official. Any facilitation payment indirectly paid through a port agent, or any other third parties, to the official will violate this policy and the law.
Question 13: A Master pays an official some money because the official threatened that he will arrest the Master and his crew. Does the Master violate the policy or the laws?
This policy does not apply to situations where life, liberty or health of any Group employee or employee of an engaged third party is jeopardized. The law is very likely not applicable in such circumstances when the common law defense of duress applied.
Question 14: A broker agrees to split the commission of a fixture with another broker who has contributed to the arrival of the fixture. Would the sharing of the commission violate this policy or the laws?
In general, paying or receiving a commission in the normal course of business does not violate this policy and the laws. Therefore the sharing of a commission to reward the services of the broker does comply with this policy and the laws.
Question 15: A Master signs on a delivery note to confirm the quantity of goods received. It is subsequently discovered that the actual quantity of goods are significantly less than the quantity stated on the delivery note. Does the discrepancy of the goods received constitute to a violation of this policy or the laws?
The discrepancies do not violate to this policy and it is very unlikely to constitute a violation of those laws related to bribery if the Master was instructed to sign to confirm something which was incorrect. However, it will be a violation of both the laws and this policy if the Master was being bribed into silence for the discrepancies.
Question 16: A company provides gift and souvenir to their business partners to promote business relationship. The expenditures may vary from time to time depending on the strategic value of the clients. How to determine if an entertainment would be allowable under the policy or the Bribery Act and what is the standard level of expenditure that the UK Government is allowed?
Whether an entertainment expense will be allowed under the policy or the Act depends on the intention of the expenditure and the proportionality of the volume of business with the subjected client. The UK Government does not suggest any standard level of promotional expenditure and entertainment.
Question 17: Would a facilitation payment be allowable if the Authority issue an official receipt for the payment?
Whether the payment was supported by an official receipt does not change the nature of the payment. If the payment was made to influence the execution of the duties of an official then it will be considered as a facilitation payment.
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Final Anti-Bribery Group Policy_FAQ_Feb 2012 V2Page 1 of 7