Answer ... The Foreign Corrupt Practices Act (FCPA), enacted in 1977, governs bribery of foreign public officials and representatives of government-controlled companies (15 USC §§ 78dd-1, et seq). In general, the FCPA prohibits US issuers and their agents, US corporate entities, US citizens, nationals or residents, and foreign nationals while in the United States from “corruptly” paying, promising, authorising or offering “anything of value” to a foreign public official to “influenc[e] any act or decision of such foreign official in his official capacity” or to secure an improper business advantage (15 USC §§ 78dd-1, 78dd-2, and 78dd-3). The FCPA also includes accounting provisions, which require US issuers to make and keep accurate books, records and accounts and to implement internal accounting controls (15 USC § 78m). Many FCPA cases also implicate federal money-laundering statutes, such as 18 USC § 1956, which prohibits, among other things, funding specified unlawful activity, such as violations of domestic or foreign anti-bribery statutes. The International Travel Act of 1961 likewise forbids the use of US mail or interstate or foreign travel for the purpose of distributing the proceeds or committing an act in furtherance of unlawful activity (18 USC § 1952). Under the Travel Act, ‘unlawful activity’ includes bribery in violation of US law, including the FCPA.
Answer ... The United States is a party to:
- the Organisation for Economic Co-operation and Development (OECD) Anti-bribery Convention;
- the United Nations Convention Against Corruption; and
- the Inter-American Convention Against Corruption.
The United States is also a member of the OECD Working Group on Bribery and Anti-bribery Convention.
Answer ... The US Department of Justice (DOJ) and the US Securities and Exchange Commission (SEC) jointly issued guidance in 2012, and published an update in 2015, entitled “A Resource Guide to the U.S Foreign Corrupt Practices Act”, which addresses the hallmarks of an effective corporate compliance programme, among other things. In addition, the DOJ’s FCPA Corporate Enforcement Policy from November 2017 (updated in March 2019) describes the criteria it will apply in evaluating whether a corporate entity has an effective compliance and ethics programme, which overlap with those discussed in the Resource Guide.
Answer ... The principal federal prosecuting agencies in the United States are the DOJ and the SEC. The DOJ has authority to bring criminal prosecutions, while the SEC has authority to bring civil enforcement actions. In cases involving US issuers or their executives, employees or agents, a company or individual may be subject to parallel investigations by the DOJ and SEC. In criminal investigations, the DOJ works in conjunction with an investigating agency, such as the Federal Bureau of Investigation or the Department of Homeland Security.
The Commodity Futures Trading Commission (CFTC) recently announced an initiative to investigate and hold to account companies and individuals engaged in commodities-related bribery. The CFTC will work in partnership with the DOJ and SEC to investigate foreign bribery and prosecute overseas corruption offences, and announced that commodities companies that self-report violations of the Commodity Exchange Act involving foreign corrupt practices could receive declinations (CFTC, Enforcement Advisory, 6 March 2019).
Answer ... Since the FCPA was enacted in 1977, the DOJ has brought over 350 enforcement actions and the SEC has brought over 200 enforcement actions.
Answer ... There has been recent criticism of the FCPA for enabling the prosecution only of bribe payers, not bribe recipients. New legislation has recently been proposed in the form of the Foreign Extortion Prevention Act, which would criminalise a foreign official’s demand for, or receipt of, a bribe. It is unknown at this time whether this legislation will be enacted.