The Organisation for Economic Co-operation and Development's Working Group on Bribery (the "OECD Working Group") commended U.S. efforts to improve enforcement under the Foreign Corrupt Practices Act ("FCPA").
In its Phase 4 Report, the OECD Working Group praised the efforts of the DOJ and the SEC in (i) using different theories of liability to hold accountable individuals involved in foreign bribery, (ii) disincentivizing the use of the narrow facilitation payments exception and (iii) leveraging working relationships with other jurisdictions to enhance the investigation of foreign bribery cases. (The OECD Working Group's Phase 4 evaluations "explore issues such as detection, enforcement, corporate liability, and international cooperation, as well as covering unresolved issues from prior reports.")
The OECD Working Group also praised the commitment of the DOJ and the SEC in updating A Resource Guide to the U.S. Foreign Corrupt Practices Act (or the "FCPA Resource Guide").
The OECD Working Group recommended that U.S. agencies:
- preserve data regarding how U.S. authorities detected foreign bribery cases, and share that data with the OECD Working Group;
- consider additional protections for whistleblowers who report suspected bribery by non-publicly traded companies;
- make publicly available whether a non-prosecution agreement (or "NPA") or deferred prosecution agreement (or "DPA") has been extended or completed, and the grounds for any extension; and
- apply appropriate AML obligations to lawyers, accountants, and trust and company service providers for purposes of detecting foreign bribery.
The OECD's report praises the United States' anti-bribery efforts, recognizing that the U.S. plays a prominent role globally in enforcing the FCPA, and in assisting other countries to enforce similar laws. Nonetheless, the group identifies potential improvements. Notably, the OECD calls for the U.S. to provide additional transparency around government decisions to enter into or extend non-prosecution agreements ("NPAs") and deferred prosecution agreements ("DPAs"). Given that so many FCPA investigations are resolved using these agreements, it is appropriate to provide the public, including companies under investigation, with a clearer view of how the government wields its NPA and DPA authority. Anyone who has scoured the Corporate Prosecution Registry (available here) knows that the details of numerous NPAs and DPAs currently remain under wraps.
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