Page 11 - U.S. FOREIGN CORRUPT PRACTICES ACT

A Resource Guide to the U.S. Foreign Corrupt Practices Act. Second Edition.

and records and the reliability of the audit process prosecute FCPA violations, reduce bribery demands
which constitute the foundations of our system of through good governance programs and other
corporate disclosure.” 17 measures, and promote a fair playing field for U.S.
In 1988, Congress amended the FCPA to add companies doing business abroad.
two affirmative defenses: (1) the local law defense;

and (2) the reasonable and bona fide promotional Department of Justice
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expense defense. Congress also requested that DOJ has criminal FCPA enforcement
the President negotiate an international treaty authority over “issuers” (i.e., public companies)
with members of the Organisation for Economic and their officers, directors, employees, agents,
Co-operation and Development (OECD) to prohibit or stockholders acting on the issuer’s behalf.
bribery in international business transactions by DOJ also has both criminal and civil enforcement

many of the United States’ major trading partners. responsibility for the FCPA’s anti-bribery provisions
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Subsequent negotiations at the OECD culminated over “domestic concerns”—which include (a) U.S.
in the Convention on Combating Bribery of Foreign citizens, nationals, and residents and (b) U.S.
Officials in International Business Transactions businesses and their officers, directors, employees,
(Anti-Bribery Convention), which, among other agents, or stockholders acting on the domestic

things, required parties to make it a crime to bribe concern’s behalf—and certain foreign persons
foreign officials. 20 and businesses that act in furtherance of an FCPA
In 1998, the FCPA was amended to conform to violation while in the territory of the United States.
the requirements of the Anti-Bribery Convention. Within DOJ, the Fraud Section of the Criminal
These amendments expanded the FCPA’s scope to: Division has primary responsibility for all FCPA
(1) include payments made to secure “any improper matters. 23 The FCPA Unit within the Fraud Section

advantage”; (2) reach certain foreign persons who handles all FCPA matters for DOJ, and regularly
commit an act in furtherance of a foreign bribe while works jointly with U.S. Attorneys’ Offices around
in the United States; (3) cover public international the country.
organizations in the definition of “foreign official”; DOJ maintains a website dedicated to the

(4) add an alternative basis for jurisdiction based FCPA and its enforcement at http://www.justice.
on nationality; and (5) apply criminal penalties to gov/criminal/fraud/fcpa/. The website provides
foreign nationals employed by or acting as agents translations of the FCPA in numerous languages,
of U.S. companies. The Anti-Bribery Convention relevant legislative history, and selected documents
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came into force on February 15, 1999, with the from FCPA-related prosecutions and resolutions
United States as a founding party. since 1977, including charging documents, plea
agreements, deferred prosecution agreements,
National Landscape: Interagency non-prosecution agreements, press releases, and
Efforts other relevant pleadings and court decisions. The
DOJ and SEC share enforcement authority for website also provides copies of opinions issued in

the FCPA’s anti-bribery and accounting provisions. response to requests by companies and individuals
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They also work with many other federal agencies under DOJ’s FCPA opinion procedure.
and law enforcement partners to investigate and

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