Comparative Guides
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Results: 4 Answers
Anti-Corruption & Bribery
2.
Definitions and scope of application,
2.1
How is ‘public corruption’ or ‘bribery of a public official’ defined in the anti-corruption legislation?
 
United States
Under the Foreign Corrupt Practices Act (FCPA), ‘bribery of a public official’ is defined as:

  • making a payment or offering, authorising or promising a payment or anything of value;
  • to a foreign public official, foreign political party or party official, or candidate for foreign political office, directly or indirectly;
  • with a corrupt intent;
  • “for purposes of (i) influencing any act or decision of such foreign official in his official capacity, (ii) inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official, (iii) securing any improper advantage or (iv) inducing such foreign official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality”;

in order to obtain or retain business or direct business to any person (15 USC § 78dd-1).

For more information about this answer please contact: John Buretta from Cravath Swaine & Moore LLP
2.2
How is a ‘public official’ defined in the anti-corruption legislation? How is a ‘foreign public official’ defined?
 
United States
A ‘foreign official’ is defined as “any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organisation, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organisation” (15 USC § 78dd-1). The FCPA does not distinguish between low-ranking and high-level officials of foreign governments – any such foreign government employee or official may fall within the definition of ‘foreign official’.

For more information about this answer please contact: John Buretta from Cravath Swaine & Moore LLP
2.3
How is ‘private corruption’ or ‘bribery in the private sector’ defined in the anti-corruption legislation?
 
United States
The FCPA prohibits the bribery of a foreign public official and does not reach bribery of a private person, unless that private person is acting on behalf of a foreign official (15 USC § 78dd-1). The Travel Act makes it a crime to use a “facility in interstate or foreign commerce” with the intent to promote “any unlawful activity” and thereafter to perform “any unlawful activity” (18 USC § 1952(a)). The statute defines ‘unlawful activity’ to include “extortion [or] bribery…in violation of the laws of the State in which they are committed or of the United States” (id § 1952(b)).

For more information about this answer please contact: John Buretta from Cravath Swaine & Moore LLP
2.4
How is ‘bribe’ defined in the anti-corruption legislation?
 
United States
The FCPA applies only to payments made for an improper purpose to induce or influence a foreign official to use his or her position “in order to assist … in obtaining or retaining business for or with, or directing business to, any person”. This requirement is known as the ‘business purpose’ test (Department of Justice (DOJ) and Securities and Exchange Commission (SEC), “A Resource Guide to the US Foreign Corrupt Practices Act” at 12 (2012, updated 2015)).

For more information about this answer please contact: John Buretta from Cravath Swaine & Moore LLP
2.5
What other criminal offences are identified and defined in the anti-corruption legislation?
 
United States
While the FCPA itself does not criminalise offences beyond bribery, a criminal violation of the FCPA will often be accompanied with charges of offences such as money laundering, wire fraud, conspiracy or violation of the Travel Act (DOJ and SEC, “A Resource Guide to the US Foreign Corrupt Practices Act” at 48–49 (2012, updated 2015)).

For more information about this answer please contact: John Buretta from Cravath Swaine & Moore LLP
2.6
Can both individuals and companies be prosecuted under the anti-corruption legislation?
 
United States
Both individuals and corporate entities may be held liable for bribery of a foreign official. A corporate entity may be liable “when its directors, officers, employees, or agents, acting within the scope of their employment, commit FCPA violations intended, at least in part, to benefit the company” (DOJ and SEC, “A Resource Guide to the US Foreign Corrupt Practices Act” at 27 (2012, updated 2015)).

In recent years, US government authorities have emphasised enforcement against individuals. In 2015 the DOJ announced that investigations and prosecutions would prioritise identifying and pursuing “culpable individuals at all levels in corporate cases” (Sally Quillian Yates, DOJ, “Individual Accountability for Corporate Wrongdoing”, 9 September 2015). Among other things, the DOJ required that corporate entities report “all relevant facts relating to individuals responsible for the misconduct” in order to receive cooperation credit (id). The DOJ’s FCPA Corporate Enforcement Policy, announced in November 2017 and updated in March 2019, similarly focuses on individuals. The policy reiterates that full cooperation from a corporate entity includes disclosure of “all facts related to involvement in the criminal activity by the company’s officers, employees, or agents”. Regarding “timely and appropriate remediation” – which is also required for full cooperation credit – the policy requires corporate entities to appropriately discipline employees who were responsible for the misconduct. The SEC has similarly stated that individual liability is a fundamental aspect of FCPA enforcement.

For more information about this answer please contact: John Buretta from Cravath Swaine & Moore LLP
2.7
Can foreign companies be prosecuted under the anti-corruption legislation?
 
United States
Foreign companies can be prosecuted under the FCPA if they are ‘issuers’ and use the US mail or any means or instrumentalities of interstate commerce in furtherance of a corrupt payment to a foreign official. Those that are not ‘issuers’ may still be subject to the FCPA if they engage in any act in furtherance of a corrupt payment while in the territory of the United States (DOJ and SEC, “A Resource Guide to the US Foreign Corrupt Practices Act” at 12 (2012, updated 2015)).

For more information about this answer please contact: John Buretta from Cravath Swaine & Moore LLP
2.8
Does the anti-corruption legislation have extraterritorial reach?
 
United States
The FCPA’s anti-bribery provisions can apply to conduct both inside and outside the United States. US persons and US businesses are prohibited from undertaking corrupt conduct that violates the FCPA anywhere in the world. US issuers are also subject to the FCPA as to the issuer’s conduct worldwide (DOJ and SEC, “A Resource Guide to the US Foreign Corrupt Practices Act” at 12 (2012, updated 2015)).

For more information about this answer please contact: John Buretta from Cravath Swaine & Moore LLP