Foreign Corrupt Practices Act

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Foreign Corrupt Practices Act
Great Seal of the United States
Other short titles
  • Domestic and Foreign Investment Improved Disclosure Act
  • Securities Exchange Act of 1934 Amendment
  • Unlawful Corporate Payments Act
Long title An Act to amend the Securities Exchange Act of 1934 to make it unlawful for an issuer of securities registered pursuant to section 12 of such Act or an issuer required to file reports pursuant to section 15(d) of such Act to make certain payments to foreign officials and other foreign persons, to require such issuers to maintain accurate records, and for other purposes.
Acronyms (colloquial) FCPA
Nicknames Foreign Corrupt Practices Act of 1977
Enacted by the 95th United States Congress
Effective December 19, 1977
Citations
Public Law 95-213
Statutes at Large 91 Stat. 1494
Codification
Titles amended 15 U.S.C.: Commerce and Trade
U.S.C. sections amended 15 U.S.C. ch. 2b § 78a et seq.
Legislative history
  • Introduced in the Senate as S. 305 by William Proxmire (D-WI) on January 18, 1977
  • Committee consideration by Senate Banking, House Commerce
  • Passed the Senate on May 5, 1977 (passed)
  • Passed the House on November 1, 1977 (passed, in lieu of H.R. 3815)
  • Reported by the joint conference committee on December 6, 1977; agreed to by the Senate on December 6, 1977 (agreed) and by the House on December 7, 1977 (349-0)
  • Signed into law by President Jimmy Carter on December 19, 1977

The Foreign Corrupt Practices Act of 1977 (FCPA) (15 U.S.C. § 78dd-1, et seq.) is a United States federal law known primarily for two of its main provisions, one that addresses accounting transparency requirements under the Securities Exchange Act of 1934 and another concerning bribery of foreign officials.[1]

Provisions and scope[edit]

The idea of Foreign Corrupt Practices Act is to make it illegal for companies and the supervisors to influence anyone with any personal payments or rewards. [2]The FCPA applies to any person who has a certain degree of connection to the United States and engages in foreign corrupt practices. The Act also applies to any act by U.S. businesses, foreign corporations trading securities in the United States, American nationals, citizens, and residents acting in furtherance of a foreign corrupt practice whether or not they are physically present in the United States. This is considered the nationality principle of the act. Whenever businesses decide to follow the unethical road, there are consequences including high financial penalties. Any individuals that are involved in those activities may face prison time.[3] This act was enacted for the purpose of making it unlawful for certain classes of persons and entities to make payments to foreign government officials to assist in obtaining or retaining business.[4][5] In the case of foreign natural and legal persons, the Act covers their actions if they are in the United States at the time of the corrupt conduct. This is considered the protective principle of the act.[5] Further, the Act governs not only payments to foreign officials, candidates, and parties, but any other recipient if part of the bribe is ultimately attributable to a foreign official, candidate, or party. These payments are not restricted to just monetary forms and may include anything of value.[6] This is considered the territoriality principle of the act.[5]When looking at the outcome of the law, it appears to have a positive effect. The growth of American MNC’s in the last few years confirms that briberies are not basic facts of businesses in many countries, but it doesn’t mean that bribery doesn’t exist. Even though government and companies have taken important steps, much more needs to be done because bribery continues to be a problem in many countries.[7]

Persons subject to the FCPA[edit]

Issuers
Includes any U.S. or foreign corporation that has a class of securities registered, or that is required to file reports under the Securities and Exchange Act of 1934
Domestic concerns
Refers to any individual who is a citizen, national, or resident of the United States and any corporation and other business entity organized under the laws of the United States or of any individual US State, or having its principal place of business in the United States
Any person
covers both enterprises and individuals

History[edit]

As a result of U.S. Securities and Exchange Commission investigations in the mid-1970s, over 400 U.S. companies admitted making questionable or illegal payments in excess of $300 million to foreign government officials, politicians, and political parties. The abuses ran the gamut from bribery of high foreign officials to secure some type of favorable action by a foreign government to so-called facilitating payments that were made to ensure that government functionaries discharged certain ministerial or clerical duties. One major example was the Lockheed bribery scandals, in which officials of aerospace company Lockheed paid foreign officials to favor their company's products.[8] Another was the Bananagate scandal in which Chiquita Brands had bribed the President of Honduras to lower taxes. Congress enacted the FCPA to bring a halt to the bribery of foreign officials and to restore public confidence in the integrity of the American business system.

The Act was signed into law by President Jimmy Carter on December 19, 1977. It was amended by the International Anti-Bribery Act of 1998 which was designed to implement the OECD Anti-Bribery Convention.

Enforcement[edit]

The Securities and Exchange Commission (SEC) and the Department of Justice are both responsible for enforcing the FCPA. The SEC has created a specialized unit for enforcement of the FCPA.[9]

Requirements[edit]

The anti-bribery provisions of the FCPA make it unlawful for a U.S. person, and certain foreign issuers of securities, to make a payment to a foreign official for the purpose of obtaining or retaining business for or with, or directing business to, any person. Since 1998,[citation needed] they also apply to foreign firms and persons who take any act in furtherance of such a corrupt payment while in the United States. The meaning of foreign official is broad. For example, an owner of a bank who is also the minister of finance would count as a foreign official according to the U.S. government. Doctors at government-owned or managed hospitals are also considered to be foreign officials under the FCPA, as is anyone working for a government-owned or managed institution or enterprise. Employees of international organizations such as the United Nations are also considered to be foreign officials under the FCPA. There is no materiality to this act, making it illegal to offer anything of value as a bribe, including cash or non-cash items. The government focuses on the intent of the bribery rather than on the amount.

The FCPA also requires companies whose securities are listed in the United States to meet its accounting provisions.[10] These accounting provisions, which were designed to operate in tandem with the anti-bribery provisions of the FCPA, require corporations covered by the provisions to make and keep books and records that accurately and fairly reflect the transactions of the corporation and to devise and maintain an adequate system of internal accounting controls. An increasing number of corporations are taking additional steps to protect their reputation and reduce their exposure by employing the services of due diligence companies tasked with vetting third party intermediaries and identifying easily overlooked government officials embedded in otherwise privately held foreign firms. This strategy is one element of an effective FCPA Compliance Program, as it shows a sincere attempt to avoid business situations where high risk (prior history or proximity to unethical behavior) individuals are concerned.

Regarding payments to foreign officials, the act draws a distinction between bribery and facilitation or "grease payments", which may be permissible under the FCPA but may still violate local laws. The primary distinction is that grease payments are made to an official to expedite his performance of the duties he is already bound to perform.[citation needed] Payments to foreign officials may be legal under the FCPA if the payments are permitted under the written laws of the host country. Certain payments or reimbursements relating to product promotion may also be permitted under the FCPA.[citation needed]

Application[edit]

Notable cases of the application of FCPA are with Walmart, BAE Systems, Baker Hughes, Daimler AG, Halliburton, KBR, Lucent Technologies, Monsanto, Siemens, Titan Corporation, Triton Energy Limited, Avon Products, and Invision Technologies.

An April 2012 article in The New York Times reported that a former executive of Walmart de Mexico alleged in September 2005 that Walmart de Mexico had paid bribes to officials throughout Mexico in order to obtain construction permits, that Walmart investigators found credible evidence that Mexican and American laws had been broken, and that Walmart executives in the United States "hushed up" the allegations.[11][12] According to an article in Bloomberg, Wal-Mart's "probe of possible bribery in Mexico may prompt executive departures and steep U.S. government fines if it reveals senior managers knew about the payments and didn't take strong enough action, corporate governance experts said."[13] Eduardo Bohorquez, the director of Transparencia Mexicana, a "watchdog" group in Mexico, urged the Mexican government to investigate the allegations.[14] Wal-Mart and the US Chamber of Commerce had participated in a campaign to amend FCPA; according to proponents, the changes would clarify the law, while according to opponents, the changes would weaken the law.[15]

Former Representative William J. Jefferson, Democrat of Louisiana, was charged with violating this act by bribing African governments for business interests.[16] In 2008, Siemens AG paid a $450 million fine for violating the FCPA. This is one of the largest penalties ever collected by the DOJ for an FCPA case.[17]

The U.S. Justice Department and the Securities and Exchange Commission are currently investigating whether Hewlett Packard Company executives paid about $10.9 million in bribery money between 2004 and 2006 to the Prosecutor General of Russia "to win a €35 million-dollar contract to supply computer equipment throughout Russia."[18] Stronger USDOJ and SEC enforcement increased the prominence of the FCPA from 2010 onwards.[19]

In July 2011, the DOJ opened an inquiry into the News International phone hacking scandal that brought down News of the World, the recently closed UK tabloid newspaper. In cooperation with the Serious Fraud Office (United Kingdom), the DOJ will examine whether News Corporation violated the FCPA by bribing British police officers.[20]

In 2012, Japanese firm Marubeni Corporation paid a criminal penalty of US$54.6 million for FCPA violations when acting as an agent of the TKSJ joint venture, which comprised Technip S.A., Snamprogetti Netherlands B.V., Kellogg Brown & Root Inc. (KBR), and JGC Corporation. Between 1995 and 2004, the joint venture won four contracts in Nigeria worth more than US$6 billion, as a direct result of having paid US$51 million to Marubeni to be used to bribe Nigerian government officials.[21]

Other settlements for FCPA violations in 2012 include Smith & Nephew, who paid US$22.2 million to the DOJ and SEC, and BizJet International Sales and Support Inc., who paid US$11.8 million to the DOJ for bribery of foreign government officials. Both companies entered into a deferred prosecution agreement.[22][23]

In March 2012, Biomet Inc. paid a criminal fine of US$17.3 million to resolve charges of FCPA violations and US$5.5 million in disgorgement of profits and pre-judgment interest to the SEC.[24]

In March 2014, the Japanese firm Marubeni Corporation agreed with the DOJ to pay a US$88 million fine after pleading guilty to taking part in a scheme to pay bribes to high ranking Indonesian officials in order to secure a lucrative power project.[25]

See also[edit]

References[edit]

  1. ^ Funk, T. Markus (September 10, 2010). "Getting What They Pay For: The Far-Reaching Impact Of the Dodd-Frank Act's 'Whistleblower Bounty' Incentives on FCPA Enforcement". White Collar Crime Report (Bureau of National Affairs) 5 (19): 1–3. 
  2. ^ Luthans, Fred; Doh, Jonathan (2014). International Management Culture, Strategy, and Behavior (9th ed.). 2 Penn Plaza, New York, NY: McGraw-Hill Education. ISBN 978-0-07-786244-2. 
  3. ^ Luthans, Fred; Doh, Jonathan (2014). International Management Culture, Strategy, and Behavior (9th ed.). 2 Penn Plaza, New York, NY: McGraw-Hill Education. ISBN 978-0-07-786244-2. 
  4. ^ USDOJ, (2014).
  5. ^ a b c Luthans, F., & Doh, J. (2015). International Management (9th. Ed.)New York, NY: McGraw-Hill Education.
  6. ^ Posadas, Alejandro. "Combating Corruption Under International Law" (pdf). School of Law, Duke University. 
  7. ^ Luthans, Fred; Doh, Jonathan (2014). International Management Culture, Strategy, and Behavior (9th ed.). 2 Penn Plaza, New York, NY: McGraw-Hill Education. ISBN 978-0-07-786244-2. 
  8. ^ Rich, Ben R. and Janos, Leo. Skunk Works: A Personal Memoir of My Years at Lockheed. New York: Little Brown & Co., 1994, p. 10. ISBN 0-7515-1503-5.
  9. ^ Graubert, J. (1980). American Criminal Law Review. Volume 18. Issue 2. Retrieved from https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=74649
  10. ^ 15 U.S.C. § 78m
  11. ^ Barstow, David (April 21, 2012). "Vast Mexican Bribery Case Hushed Up by Wal-Mart After High-Level Struggle". The New York Times. Retrieved April 23, 2012. 
  12. ^ Miguel Bustillo (April 23, 2012). "Wal-Mart Faces Risk in Mexican Bribe Probe". The Wall Street Journal. 
  13. ^ Welch, David; Weidlich, Thom (April 23, 2012). "Wal-Mart Bribery Probe May Exposes Retailer to U.S. Fines". Bloomberg. Retrieved April 23, 2012. 
  14. ^ "Mexican watchdog group says Mexico's federal government should probe alleged Wal-Mart bribes". The Washington Post. Associated Press. April 22, 2012. Retrieved April 23, 2012. [dead link]
  15. ^ Hamburger, Tom; Dennis, Brady; Yang, Jia Lynn (April 24, 2012). "Wal-Mart took part in lobbying campaign to amend anti-bribery law". The Washington Post. Retrieved November 18, 2012. 
  16. ^ Stout, David (2009-08-06). "Ex-Rep. Jefferson Convicted in Bribery Scheme". The New York Times. p. A14. 
  17. ^ http://www.foreign-corrupt-practices-act.org/foreign-corrupt-practices-act-news/5-siemens-ag-pays-450-million-to-settle-fcpa-bribery-charges.html
  18. ^ Crawford, David; Searcey, Dionne (April 16, 2010). "U.S. Joins H-P Bribery Investigation". The Wall Street Journal. 
  19. ^ T. Markus Funk, "Another Landmark Year: 2010 FCPA Enforcement Year-in-Review and Trends for 2011," Bloomberg Law Reports (January 3, 2010).
  20. ^ "News Corp shares hit two-year low on hacking arrest". BBC World News. 18 July 2011. 
  21. ^ US Department of Justice (17 January 2012). "Marubeni Corporation Resolves Foreign Corrupt Practices Act Investigation and Agrees to Pay a $54.6 Million Criminal Penalty". US Department of Justice. 
  22. ^ Smith & Nephew (6 February 2012). "Smith & Nephew reaches settlement with US Government". Smith & Nephew. 
  23. ^ Reuters (14 March 2012). "U.S. says BizJet settles foreign bribery charges". Reuters. 
  24. ^ Richard L. Cassin (26 March 2012). "Biomet Pays $22.8 Million To Settle Bribe Charges". The FCPA Blog. 
  25. ^ Brown, Howard. "$88 Million Fine Agreed by Marubeni Corporation of Japan with the U.S. Department of Justice to Settle a Foreign Corrupt Practices Act Investigation". 

External links[edit]