Page 27 - U.S. FOREIGN CORRUPT PRACTICES ACT
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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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