Foreign Corrupt Practices Act
The Foreign Corrupt Practices Act (FCPA, 1977) makes it illegal for any U.S. firm to offer, promise, or make payments or gifts of anything of value to foreign officials. The FCPA was a response to a 1970s investigation documenting that over 400 American companies had given bribes or made otherwise questionable payments in excess of $300 million to foreign officials for the purpose of obtaining or keeping business. The act is one of the toughest anti-
BRIBERY laws among trading countries in the world. The FCPA, technically an amendment to the Securities and Exchange Act of 1934, applies to issuers of registered securities in the United States and “domestic concerns” (any individual who is a citizen, national, or resident of the United States). Payments are prohibited if the person making the payment knows or should know that some or all of the funds will be used to influence government decisions. The FCPA prohibits payments to foreign political parties and candidates as well as officials. Payments to foreign companies and executives are not prohibited unless it is known or should be known that the payments will be distributed to government officials. As amended in 1988, the FCPA allows “facilitating payments” for “routine governmental action.” This may include payments for obtaining permits, licenses, or other official documents; processing of governmental papers; providing public services; and scheduling inspections. As documented in the investigation, many U.S. companies hid bribes for foreign government officials, accounting for these payments as commissions or payments rendered for professional services. As part of the FCPA, U.S. firms engaged in international trade are subject to periodic disclosure requirements. The act requires the making and keeping of records and accounts “which, in reasonable detail, accurately and fairly reflect the transactions, and disposition of the
ASSETS.” Criminal penalties for violation of the FCPA are significant. Firms are subject to fines up to $2 million; officers, directors, employees, and agents are subject to fines up to $100,000 and imprisonment up to five years. Civil penalties are also possible as well, and other federal criminal laws apply for bribery of international officials. While bribery remains a global business issue, the FCPA has significantly influenced American international business practices.