Page 17 - U.S. FOREIGN CORRUPT PRACTICES ACT

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

Chapter 2
The FCPA:
Anti-Bribery Provisions

THE FCPA:

ANTI-BRIBERY PROVISIONS

The FCPA addresses the problem of international corruption in two ways: (1) the anti-

bribery provisions, which are discussed below, prohibit individuals and businesses from

bribing foreign government officials in order to obtain or retain business; and (2) the
accounting provisions, which are discussed in Chapter 3, impose certain record keeping

and internal control requirements on issuers, and prohibit individuals and companies from

knowingly falsifying an issuer’s books and records or circumventing or failing to implement

an issuer’s system of internal controls. Violations of the FCPA can lead to civil and criminal
penalties, sanctions, and remedies, including fines, disgorgement, and/or imprisonment.

In general, the FCPA prohibits offering to domestic concerns, acting while in the territory of
pay, paying, promising to pay, or authorizing the the United States.
payment of money or anything of value to a foreign
official in order to influence any act or decision of Issuers—15 U.S.C. § 78dd-1
the foreign official in his or her official capacity or Section 30A of the Securities Exchange Act of
to secure any other improper advantage in order to 1934 (the Exchange Act), which can be found at

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obtain or retain business. 15 U.S.C. § 78dd-1, contains the anti-bribery
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provision governing issuers. A company is an
Who Is Covered by the Anti-Bribery “issuer” under the FCPA if it has a class of securities
Provisions? registered under Section 12 of the Exchange Act 45

The FCPA’s anti-bribery provisions apply or is required to file periodic and other reports with
broadly to three categories of persons and entities: SEC under Section 15(d) of the Exchange Act. In
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(1) “issuers” and their officers, directors, employees, practice, this means that any company with a class
agents, and stockholders acting on behalf of an of securities listed on a national securities exchange
issuer; (2) “domestic concerns” and their officers, in the United States, or any company with a class
directors, employees, agents, and stockholders of securities quoted in the over-the-counter market
acting on behalf of a domestic concern; and (3) in the United States and required to file periodic

certain persons and entities, other than issuers and reports with SEC, is an issuer. A company thus need

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