Page 111 - U.S. FOREIGN CORRUPT PRACTICES ACT

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

18, 1997, 37 I.L.M. 1 [hereinafter Anti-Bribery Convention]. 31 See Statement on Signing the International Anti-
The Anti-Bribery Convention requires member countries Bribery and Fair Competition Act of 1998, 34 Weekly Comp.
to make it a criminal offense “for any person intentionally Pres. Doc. 2290, 2291 (Nov. 10, 1998) (“U.S. companies
to offer, promise or give any undue pecuniary or other have had to compete on an uneven playing field . . . . The
advantage, whether directly or through intermediaries, OECD Convention . . . is designed to change all that. Under
to a foreign public official, for that official or for a third the Convention, our major competitors will be obligated
party, in order that the official act or refrain from acting in to criminalize the bribery of foreign public officials in
relation to the performance of official duties, in order to international business transactions.”).
obtain or retain business or other improper advantage in
the conduct of international business.” The Convention and 32 OECD, Country Monitoring of the OECD Anti-
its commentaries also call on all parties (a) to ensure that Bribery Convention, available at http://www.oecd.org/
aiding and abetting and authorization of an act of bribery are document/12/0,3746,en_2649_34859_35692940_1_1_1_1,00.
criminal offenses, (b) to assert territorial jurisdiction “broadly html.
so that an extensive physical connection to the bribery act
is not required,” and (c) to assert nationality jurisdiction 33 OECD, Phase 3 Country Monitoring of the OECD
consistent with the general principles and conditions of each Anti-Bribery Convention, available at http://www.oecd.org/
party’s legal system. Id. at art. 1.2, cmts. 25, 26. document/31/0,3746,en_2649_34859_44684959_1_1_1_1,00.
html.
21 See International Anti-Bribery and Fair Competition
Act of 1998, Pub. L. 105-366, 112 Stat. 3302 (1998); see also 34 OECD, Country Reports on the Implementation of the
S. Rep. No. 105-277, at 2-3 (describing amendments to “the OECD Anti-Bribery Convention, available at http://www.oecd.org/
FCPA to conform it to the requirements of and to implement document/24/0,3746,en_2649_34859_1933144_1_1_1_1,00.html.
the OECD Convention”).
35 The OECD Phase 1, 2, and 3 reports on the United
22 There is no private right of action under the FCPA. States, as well as the U.S. responses to questionnaires, are
See, e.g., Lamb v. Phillip Morris, Inc., 915 F.2d 1024, 1028-29 available at http://www.justice.gov/criminal/fraud/fcpa/
(6th Cir. 1990); McLean v. Int’l Harvester Co., 817 F.2d 1214, intlagree.
1219 (5th Cir. 1987).
36 See OECD Working Group on Bribery, United
23 U.S. Dept. of Justice, Justice Manual § 9-47.110 States: Phase 3, Report on the Application of the Convention on
(2008) [hereinafter JM], available at https://www.justice.gov/ Combating Bribery of Foreign Public Officials in International
jm/justice-manual. Business Transactions and the 2009 Revised Recommendation
on Combating Bribery in International Business Transactions,
24 Go to https://www.trade.gov/virtual-services Oct. 2010, at 61-62 (recommending that the United
and https://2016.export.gov/worldwide_us/index.asp for States “[c]onsolidate and summarise publicly available
more information. information on the application of the FCPA in relevant
sources”), available at https://www.oecd.org/unitedstates/
25 See International Trade Administration, Country UnitedStatesphase3reportEN.pdf.
Commercial Guides, available at: https://www.trade.gov/ccg-
landing-page. 37 United Nations Convention Against Corruption,
Oct. 31, 2003, S. Treaty Doc. No. 109-6, 2349 U.N.T.S. 41,
26 The International Company Profile reports include available at https://www.unodc.org/documents/brussels/UN_
a listing of the potential partner’s key officers and senior Convention_Against_Corruption.pdf [hereinafter UNCAC].
management; banking relationships and other financial
information about the company; and market information, 38 For more information about the UNCAC review
including sales and profit figures and potential liabilities. They mechanism, see Mechanism for the Review of Implementation
are not, however, intended to substitute for a company’s own of the United Nations Convention Against Corruption, United
due diligence, and the Commercial Service does not offer ICP Nations Office on Drugs and Crime, available at http://
in countries where Dun & Bradstreet or other private sector www.unodc.org/documents/treaties/UNCAC/Publications/
vendors are already performing this service. See International ReviewMechanism-BasicDocuments/Mechanism_for_the_
Trade Administration, International Company Profile, Review_of_Implementation_-_Basic_Documents_-_E.pdf.
available at https://www.trade.gov/international-company-
profile-0. 39 For information about the status of UNCAC, see
United Nations Office on Drugs and Crime, UNCAC Signature
27 See International Trade Administration, The U.S. and Ratification Status as of 6 February 2020, available at http://
Commercial Service – Virtual Services, available at https:// www.unodc.org/unodc/en/treaties/CAC/signatories.html.
www.trade.gov/virtual-services.
40 Organization of American States, Inter-American
28 See https://tcc.export.gov/Report_a_Barrier/index. Convention Against Corruption, Mar. 29, 1996, 35 I.L.M.
asp. 724, available at http://www.oas.org/juridico/english/
treaties/b-58.html. For additional information about the
29 Information about the Advocacy Center services can status of the IACAC, see Organization of American States,
be found at https://www.trade.gov/advocacy-center-services. Signatories and Ratifications, available at http://www.oas.org/
juridico/english/Sigs/b-58.html.
30 Reports on U.S. compliance with these treaties can
be found at http://www.justice.gov/criminal/fraud/fcpa/
intlagree/.
103