Following the passage of the U.K. Bribery Act of 2010 (the “Bribery Act”) on April 8, 2010, and its most recent enactment on July 1, 2011, businesses both in the United Kingdom and abroad expressed great concern over the expansive extraterritorial implications the new law could have on their own conduct. Indeed, the Bribery Act’s prohibitions appear to extend far beyond those of its U.S. counterpart, the Foreign Corrupt Practices Act (the “FCPA”), which principally seeks to prevent certain classes of individuals and entities from bribing foreign public officials in order to obtain an unfair business advantage. Among the most controversial of the Bribery Act’s provisions is the treatment of “corporate hospitality payments.” Businesses around the world frequently engage in these payments in order to promote specific goods and services, assist in the execution of contracts, and generally garner goodwill with current and potential clients. Drawing the line between bribery and corporate hospitality is admittedly a difficult task and U.S. officials charged with enforcing the FCPA pay close attention when businesses are involved in building and maintaining relations with clients who additionally happen to be foreign public officials. Nevertheless, the FCPA recognizes the relevance corporate hospitality payments have to U.S. and foreign businesses and permits such payments so long as they are “reasonable and bona fide.” In contrast, the Bribery Act is so broad that it effectively treats all corporate hospitality payments to foreign public officials as prima facie violations, subject to a relatively vague affirmative defense known as the “adequate procedures” defense. As a result, scholars analyzing the Bribery Act have explained its provisions “could potentially sweep in legitimate conduct.”

  On March 30, 2011, following months of criticism, the U.K. Ministry of legitimate conduct.” On March 30, 2011, following months of criticism, the U.K. Ministry of Justice released its long awaited Guidance on the Bribery Act in order to assist businesses to better understand and comply with the law upon going into effect on July 1, 2011. Interestingly, while the MoJ Guidance sheds new light on the most troublesome provisions of the Bribery Act, it also indicates some backpedaling on the part of U.K. officials. The MoJ Guidance attempts to reassure corporations that enforcement of the Bribery Act will take a “common sense” approach, but what this means is incredibly vague. In fact, this “common sense” approach appears to effectively amount to U.K. officials telling the business community, trust us — little consolation to a U.S. corporation unsure of how to manage its future conduct.

  Given the lack of clarity in this law, this Essay attempts to assess the MoJ Guidance’s effect on the Bribery Act’s treatment of corporate hospitality payments in which U.S. companies frequently engage. By doing so this Essay proposes an interpretation of the Bribery Act and MoJ Guidance that has not yet been discussed within current scholarship. What is clear is that the MoJ Guidance has softened the Bribery Act’s treatment of corporate hospitality payments. But, while much of the interest generated by the MoJ Guidance has been directed at clarifying the “adequate procedures” defense, the MoJ Guidance has implicitly created a new standard that should ultimately limit prosecutorial discretion. Ultimately, with the introduction of the MoJ Guidance, the Bribery Act should not be seen as the coming end of all corporate hospitality payments, but rather as a legal regime that will function more like its counterpart across the Atlantic, the FCPA.