Anti-Bribery Anti-Corruption Policy
ESG Policies and Commitments
Anti-bribery & Anti-corruption Policy
- The purpose of this Anti-Bribery and Anti-Corruption Policy (“ABAC Policy”) is to clarify the meaning of the terms “Corrupt Practice”, “Fraudulent Practice”, “Coercive Practice”, “Collusive Practice”, “Obstructive Practice”, “Theft” and “Misuse of Resources” in the context of operations of OIT.
- “Applicable Law” means all applicable statutes, laws, ordinances, rules, and regulations, including but not limited to, any license, permit or other governmental Authorization, in each case as in effect from time to time.
- “Authority” means any national, supranational, regional, or local government, or governmental, statutory, regulatory, administrative, fiscal or government-owned body, department, commission, authority, agency or entity, or central bank (or any Person whether or not government owned and howsoever constituted or called, that exercises the functions of a central bank) or any court, tribunal, judicial or arbitral body.
- “Authorization” means any consent, registration, filing, notification, reporting,agreement, notarization, certificate, license, approval, permit, authority, or exemption from, by or with any Authority, whether given by express action or deemed given by failure to act within any specified time period and all corporate, creditors’ and shareholders’ approvals or consents, in relation to the foregoing.
- “Company” means Oriental Infra Trust, a company incorporated under the laws of India, with corporate identity number IN/ InvIT/ 18-19/ 0011 and having its registered office Oriental InfraTrust- 3rd Floor, Plot No. 8, Sector: B-7, Local Shopping Complex, Vasant Kunj, New Delhi-110070.
- “MBFS Unitholders” means multilateral or bilateral development financial institutions or foreign government agencies or sovereign or sovereign related investors, if such entities, directly or indirectly, subscribe to and hold Units of the Trust issued pursuant to (i) the Initial Offer; or (ii) any subsequent primary issuance of Units as per Applicable Law, provided that, at the time of such subsequent primary issuance, the relevant entity continues to hold Unit(s) of the Trust issued to such entity pursuant to the Initial Offer.
- “Person” means any individual, corporation, company, partnership, firm, voluntary association, joint venture, trust, unincorporated organization, Authority or any other entity whether acting in an individual, fiduciary or other capacity
- “Sanctionable Practice” means any Corrupt Practice, Fraudulent Practice, Coercive Practice, Collusive Practice, Obstructive Practice, Theft and Misuse of Resources as those terms are explained in Clause-4 below and interpreted in accordance with this ABAC Policy.
- All terms defined herein shall have the meaning ascribed to such terms under this ABAC Policy and shall not have the meaning ascribed to such terms under other InvIT Documents.
- All terms used but not defined herein shall have the meaning ascribed to such terms under the Trust Deed and other InvIT Documents, as applicable.
- References in this ABAC Policy to a specific gender shall be equally applicable to any gender.
- The guidelines in this ABAC Policy supplement OIT’s Code of Conduct and should be read in conjunction with:
- The Code of Conduct
- Whistle Blower Policy
- Any guidance published pursuant to this policy; and
- Any other relevant Policies as may be implemented from time to time.
- General Interpretation:A person should not be liable for actions taken by unrelated third parties unless the first party participated in the prohibited act in question.
Description of Sanctionable Practices
- A “Corrupt Practice” is the offering, giving, receiving or soliciting, directly or indirectly, of anything of value to influence improperly the actions of another party.
- Corrupt practices are understood as kickbacks and bribery. The conduct in question must involve the use of improper means (such as bribery) to violate or derogate a duty owed by the recipient in order for the payor to obtain an undue advantage or to avoid an obligation. Antitrust, securities and other violations of the law that are not of this nature are excluded from the definition of corrupt practices.
- It is acknowledged that foreign investment agreements, concessions and other types of contracts commonly require investors to make contributions for bona fide social development purposes or to provide funding for infrastructure unrelated to the project. Similarly, investors are often required or expected to make contributions to bona fide local charities. These practices are not viewed as Corrupt Practices for purposes of these definitions, so long as they are permitted under local law and fully disclosed in the payor’s books and records. Similarly, an investor will not be held liable for corrupt or fraudulent practices committed by entities that administer bona fide social development funds or charitable contributions.
- In the context of conduct between private parties, the offering, giving, receiving or soliciting of corporate hospitality and gifts that are customary by internationally accepted industry standards shall not constitute com1pt practices unless the action violates Applicable law.
- Payment by private sector persons of the reasonable travel and entertainment expenses of public officials that are consistent with existing practice under relevant law and international conventions will not be viewed as Corrupt Practices.
- Facilitation payments are not condoned. For the purposes of implementation, the interpretation of “Corrupt Practices” relating to facilitation payments will consider relevant law and international conventions pertaining to corruption.
- A “Fraudulent Practice” is any action or omission, including a misrepresentation that knowingly or recklessly misleads, or attempts to mislead, a party to obtain a financial or other benefit or to avoid an obligation.
- An action, omission, or misrepresentation will be regarded as made recklessly if it is made with reckless indifference as to whether it is true or false. Mere inaccuracy in such information, committed through simple negligence, is not enough to constitute a “Fraudulent Practice” for purposes of this ABAC Policy.
- Fraudulent Practices are intended to cover actions or omissions that are directed to or against any of the MBFS Unitholders. It also covers Fraudulent Practices directed to or against any of the MBFS Unitholders in connection with the award or implementation of a government contract or concession in a project financed by any of the MBFS Unitholders. Frauds on other third parties are not condoned but a.re not specifically sanctioned in operations of any of the MBPS Unitholders. Similarly, other illegal behavior is not condoned, but will not be considered as a Fraudulent Practice for purposes of this ABAC Policy.
- A “Coercive Practice” is impairing or harming, or threatening to impair or harm, directly or indirectly, any party or the property of the party to influence improperly the actions of a party.
- Coercive Practices arc actions undertaken for the purpose of bid rigging or in connection with public procurement or government contracting or in furtherance of a Corrupt Practice or a Fraudulent Practice.
- Coercive Practices are threatened or actual illegal actions such as personal injury or abduction, damage to property, or injury to legally recognizable interests, in order to obtain an undue advantage or to avoid an obligation. It is not intended to cover hard bargaining, the exercise of legal or contractual remedies or litigation.
- A “Collusive Practice” is an arrangement between two or more parties designed to achieve an improper purpose, including to influence improperly the actions of another party.
- Collusive Practices are actions undertaken for the purpose of bid rigging or in connection with public procurement or government contracting or in furtherance of a Corrupt Practice or a Fraudulent Practice.
- An “Obstructive Practice” is (i) deliberately destroying, falsifying, altering or concealing of evidence material to the investigation or making of false statements to investigators, in order to materially impede any MBFS Unitholders investigation into allegations of a corrupt, fraudulent, coercive or collusive practice, and/or threatening, harassing or intimidating any party to prevent it from disclosing its knowledge of matters relevant to the investigation or from pursuing the investigation, or (ii) an act intended to materially impede the exercise of any MBFS Unitholders access to contractually required information in connection with any MBFS Unitholders investigation into allegations of a corrupt, fraudulent, coercive or collusive practice.
- Any action legally or otherwise properly taken by a party to maintain or preserve its regulatory, legal or constitutional rights such as the attorney-client privilege, regardless of whether such action had the effect of impeding an investigation, does not constitute an Obstructive Practice.
- “Theft” is the misappropriation of property belonging to another party.
Misuse of Resources
- “Misuse of Resources” is the improper use of the resources of the MBFS Unitholders, carried out either intentionally or through reckless disregard.
Gifts and Hospitality
- Business gifts and hospitality are sometimes used in the normal course of business activity. However, if offers of gifts or hospitality (including entertainment or travel) are frequent or of substantial value, they may create the perception of, or an actual conflict of interest or an ‘illicit payment’. Therefore, gifts and hospitality given or received should be modest in value and appropriate.
- The Company hereby agrees that it has not engaged in (nor authorized or permitted any of its Affiliates or any other Person acting on its behalf, to engage in) any Sanctionable Practice with respect to the Company or any transaction contemplated with respect to the Company.
- The Company hereby agrees that it shall not engage in (nor authorize or permit any of its Affiliates or any other Person acting on its behalf, to engage in) any Sanctionable Practice with respect to the Company or any transaction contemplated with respect to the Company in this ABAC Policy.
- The Company further covenants that should it become aware of any violation of paragraphs 7.1 and 7.2 above, it shall promptly notify the Investment Manager.
- If any of the MBFS Unitholders or the lenders to the Trust (until such lender is the International Finance Corporation) notifies the Company of its concern that there has been a violation of paragraphs 7. I and 7 .2 above, the Company shall co-operate in good faith with all the MBFS Unitholders, the lenders to the Trust (until such lender is the International Finance Corporation) and their representatives in determining whether such a violation has occurred, and shall respond promptly and in reasonable detail to any notice from any of the MBFS Unitholders and/ or the lenders to the Trust (until such lender is the International Finance Corporation), and shall furnish documentary support for such response upon the MBFS Unitholders’ and/ or the lenders’ to the Trust (until such lender is the International Finance Corporation) request.
Due-Diligence of Key Suppliers and Sub-Contractors Or Business Associates
- Due diligence at the time of onboarding suppliers, sub-contractors, or business associates and regularly, in the course of the business, must be carried out. OIT requires all parties to be in compliance with this ABAC Policy
- The Company hereby agrees that should the MBFS Unitholders, the lenders to the Trust (until such lender is the International Finance Corporation) or the Investment Manager notify the Company of its concern that there has been a violation of the United Nations Security Council Resolutions or any Sanctionable Practices, as defined in any other Mandatory Policy in relation to the foregoing, the Company shall cooperate in good faith with the MBFS Unitholders, the lenders to the Trust (until such lender is the International Finance Corporation) or the Investment Manager and its representatives (as required by the respective Investment Manager) in determining whether such a violation has occurred, and shall respond promptly and in reasonable detail to any notice from the MBFS Unitholders, the lenders to the Trust ( until such lender is the International Finance Corporation) or the Investment Manager and its representatives ( as required by the Investment Manager), and shall furnish documentary support for such response upon such request.
- All whistleblower complaints received shall be dealt with by the Disciplinary Committee for the next course of action based on details provided by the complainant. If the Committee determines that a complaint received is not credible, then the Committee shall document the decision with detailed justification.
- The Disciplinary Committee shall give an opportunity to be heard to the person who allegedly committed the fraud, whereby he/she may explain his/her stand in the case. Due and appropriate action shall be taken by the Committee based on the outcome of the investigation.
- In the event an investigation is carried out against a member of the Committee, due and appropriate action shall be taken by the Chairman of the Audit Committee. Within 60 days of receiving the complaint, the investigation team must complete the investigation and submit a report. Under exceptional circumstances, an extension of thirty days may be permitted by the Disciplinary Committee.
- Disciplinary action depends on the nature and gravity of the conduct or circumstances reported. Violations reported under this policy may result in one or more of the disciplinary actions as given below:
- In respect of employees, it includes:
- Verbal warning
- Written warning
- Imposition of penalty
- Termination of employment
- Any other action as decided by Disciplinary Committee
- In respect of others, it includes:
- Suspension of contract
- Termination of the contracts, sub-contracts or any other arrangement
- Initiation of legal action
- Any other action as decided by Disciplinary Committee from time to time
- All complaints are investigations are to remain confidential.
- The Company, in order to ensure compliance with this ABAC Policy, agrees that it shall not authorize or permit any of its directors, officers, employees or agents, acting on behalf of the Company and/or the Trust (the “Representatives”) to engage in any Sanctionable Practice with respect to the Trust or any transaction contemplated with respect to the Company and the Trust in this ABAC Policy. The Company shall, if required, set up procedures to implement this, ABAC Policy. The Company shall, as may be necessary and as it may deem appropriate, also develop, and disseminate tools or conduct training for Representatives to facilitate the implementation of this ABAC Policy.
- The Company shall ensure that the Representatives agree to comply with this ABAC Policy under their respective terms of employment or contract/engagement with the Company or as per the instructions or authorizations of the Company, in accordance with the provisions of this ABAC Policy.
- The Representatives shall promptly notify the Company of their concern that there has been a violation of this ABAC Policy, and shall provide reasonable details, as may be requested by the Company in relation to such violation.
- Any costs arising in relation to the Policies, including but not limited to costs in relation to any consultants, advisors and specialists appointed in accordance with the EHSS Policy and other Mandatory Policies will not be deducted from the Management Fees of the Investment Manager. Such external costs shall be separately borne by the Trust and shall be paid within 15 (fifteen) days of presentation of a bill. For the avoidance of any doubt, it is hereby clarified that the appointment of the members of the KMT and other employees of the Investment Manager except costs in relation to any consultants, advisors and specialists appointed pursuant to the EHSS Policy and other Mandatory Policies as set in the Investment Management Agreement shall be borne by the Investment Manager.
- In the event all MBFS Unitholders cease to be Unitholders of the Trust, the Investment Manager shall ascertain and make recommendations regarding all matters in respect of amendment, discontinuance, termination of all Mandatory Policies and the Trustee or the Investment Manager (as may be applicable) shall ensure that such matters are passed by way of a Simple Majority, in accordance with the Trust Deed
Table of Contents
3. CSR Policy
5. POSH Policy