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Global Increase of FCPA Bribery Cases Raises Specter of Piling On
Prosecution of bribery of foreign public officials, under the U.S. Foreign Corrupt Practices Act (FCPA) and other similar laws, has been rising globally for some time. This salutary trend has brought many benefits, including more ethical business practices, improved governance and economic growth. Yet the increasing number of regulators and enforcement agencies bringing foreign bribery cases across the globe raises the specter of successive or "carbon copy" cases. Policymakers and practitioners need to be aware of this developing risk and take steps to mitigate it.
Background
The FCPA prohibits making corrupt payments to foreign officials to obtain or retain business. The law was passed in 1977 in an effort to combat U.S. companies' bribery while operating overseas, which Congress viewed as unethical and also bad business. The statute's prohibitions apply to U.S. persons and businesses, foreign or U.S. public companies listed on U.S. exchanges or that file periodic reports with the Securities and Exchange Commission (SEC) (referred to as issuers), and certain foreign persons and businesses acting corruptly while in the territory of the United States.
In addition to the anti-bribery provisions, issuers are subject to the accounting provisions of the FCPA, which require companies to keep and maintain accurate books and records and adequate internal controls, and prohibit knowing falsification of books and records or circumvention of internal controls. In some instances, the FCPA's broad jurisdictional provisions can provide grounds to prosecute non-U.S. persons and companies, regardless of where the bribes were paid.
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