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A Resource Guide to the U.S. Foreign Corrupt Practices Act. Second Edition.
Other opinion releases also address charitable- Who Is a Foreign Official?
type grants or donations. Under the facts presented The FCPA’s anti-bribery provisions apply to
in those releases, DOJ approved the proposed grant
corrupt payments made to (1) “any foreign official”;
or donation, 103 based on due diligence measures (2) “any foreign political party or official thereof”;
and controls such as:
(3) “any candidate for foreign political office”; or
• certifications by the recipient regarding (4) any person, while knowing that all or a portion
compliance with the FCPA; 104
of the payment will be offered, given, or promised
• due diligence to confirm that none of the
recipient’s officers was affiliated with the to an individual falling within one of these three
foreign government at issue; 105 categories. 111 Although the statute distinguishes
• a requirement that the recipient provide between a “foreign official,” “foreign political party
audited financial statements; 106
or official thereof,” and “candidate for foreign
• a written agreement with the recipient
restricting the use of funds; 107 political office,” the term “foreign official” in this
• steps to ensure that the funds were guide generally refers to an individual falling within
transferred to a valid bank account; 108 any of these three categories.
• confirmation that the charity’s commitments The FCPA defines “foreign official” to include:
were met before funds were disbursed; 109
and any officer or employee of a foreign government or
• ongoing monitoring of the efficacy any department, agency, or instrumentality thereof,
of the program. 110
or of a public international organization, or any
Legitimate charitable giving does not violate person acting in an official capacity for or on behalf
the FCPA. Compliance with the FCPA merely requires of any such government or department, agency,
that charitable giving not be used as a vehicle to or instrumentality, or for or on behalf of any such
conceal payments made to corruptly influence public international organization. 112
foreign officials. As this language makes clear, the FCPA broadly
applies to corrupt payments to “any” officer or
employee of a foreign government and to those
Five Questions to Consider When Making
Charitable Payments in a Foreign Country: acting on the foreign government’s behalf. 113 The
FCPA thus covers corrupt payments to low-ranking
1. What is the purpose of the payment?
employees and high-level officials alike. 114
2. Is the payment consistent with the company’s
internal guidelines on charitable giving? The FCPA prohibits payments to foreign
officials, not to foreign governments. 115 That
3. Is the payment at the request of a foreign
official? said, companies contemplating contributions or
4. Is a foreign official associated with the charity donations to foreign governments should take
and, if so, can the foreign official make steps to ensure that no monies are used for
decisions regarding your business in that
country? corrupt purposes, such as the personal benefit of
5. Is the payment conditioned upon receiving individual foreign officials.
business or other benefits?
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