Page 81 - U.S. FOREIGN CORRUPT PRACTICES ACT

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

debarment authorities. In some situations, the of Defense Trade Controls (DDTC) 396 to consider
contracting agency may impose its own oversight when determining whether to grant, deny, or return
requirements in order for a company that has without action license applications for certain
admitted to violations of federal law to be awarded types of defense materials. One of those factors is
federal contracts, such as the Corporate Integrity whether there is reasonable cause to believe that

Agreements often required by the Department of an applicant for a license has violated (or conspired
Health and Human Services. to violate) the FCPA; if so, the Department of State
“may disapprove the application.” 397 In addition, it is
Cross-Debarment by Multilateral the policy of the Department of State not to consider
Development Banks applications for licenses involving any persons
Multilateral Development Banks (MDBs), who have been convicted of violating the AECA or
like the World Bank, also have the ability to debar convicted of conspiracy to violate the AECA. 398 In
companies and individuals for corrupt practices. 392 an action related to the criminal resolution of a U.K.
Each MDB has its own process for evaluating military products manufacturer, the DDTC imposed

alleged corruption in connection with MDB-funded a “policy of denial” for export licenses on three of
projects. When appropriate, DOJ and SEC work the company’s subsidiaries that were involved in
with MDBs to share evidence and refer cases. On violations of AECA and ITAR. 399
April 9, 2010, the African Development Bank Group,
the Asian Development Bank, the European Bank When Is a Compliance Monitor

for Reconstruction and Development, the Inter- or Independent Consultant
American Development Bank Group, and the World Appropriate?
Bank Group entered into an agreement under which One of the primary goals of both criminal
entities debarred by one MDB will be sanctioned for prosecutions and civil enforcement actions against
the same misconduct by other signatory MDBs. 393 companies that violate the FCPA is ensuring that such
This cross-debarment agreement means that if a conduct does not occur again. As a consequence,

company is debarred by one MDB, it is debarred by enhanced compliance and reporting requirements
all. 394 may be part of criminal and civil resolutions of FCPA
matters. The amount of enhanced compliance and
Loss of Export Privileges kind of reporting required varies according to the
Companies and individuals who violate the facts and circumstances of individual cases.
FCPA may face consequences under other regulatory In criminal cases, a company’s sentence, or
regimes, such as the Arms Export Control Act (AECA), a DPA or NPA with a company, may require the
22 U.S.C. § 2751, et seq., and its implementing appointment of an independent corporate monitor.

regulations, the International Traffic in Arms Whether a monitor is appropriate depends on the
Regulations (ITAR), 22 C.F.R. § 120, et seq. AECA specific facts and circumstances of the case. In 2008,
and ITAR together provide for the suspension, DOJ issued internal guidance regarding the selection
revocation, amendment, or denial of an arms export and use of corporate monitors in DPAs and NPAs
license if an applicant has been indicted or convicted with companies. 400 Additional guidance has since
for violating the FCPA. 395 They also set forth certain been issued. 401 A monitor is an independent third

factors for the Department of State’s Directorate
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