The Foreign Corrupt Practices Act in a New Era

The Foreign Corrupt Practices Act in a New Era

Mike Koehler

The Foreign Corrupt Practices Act (FCPA) has emerged as a top concern for companies doing business in the global marketplace. This book is the first of its kind given its comprehensive and provocative coverage of the FCPA and its many related legal and policy issues.

Chapter 3: The FCPA's anti-bribery provisions

Mike Koehler

Subjects: law - academic, corporate law and governance, corruption and economic crime, criminal law and justice, regulation and governance

Extract

This chapter provides a comprehensive analysis of the FCPA's anti-bribery provisions and its general elements: offering or paying money or anything of value, to a foreign official, to obtain or retain business, with a corrupt intent. For each element, legal sources of authority as well as non-legal sources of information will be discussed. To state the obvious, providing a suitcase full of cash to a foreign government official to obtain a foreign government contract satisfies the elements of the anti-bribery provisions. However, you will learn that FCPA enforcement actions seldom involve such scenarios and the proper scope of the anti-bribery provisions is subject to much dispute in this new era as legal development of these elements is still in its infancy. You will also learn that the FCPA's anti-bribery provisions prohibit not only direct payments to 'foreign officials' to 'obtain or retain business,' but also payments to 'any person' 'while knowing' that the payments will be provided to a 'foreign official.' Given the prevalence of foreign third parties, the FCPA's third-party payment provisions often present the greatest source of FCPA risk for companies competing in the global marketplace. In addition to the substantive elements of the anti-bribery provisions, jurisdictional issues will also be discussed including extraterritorial jurisdiction as to U.S. actors as well as the expansive jurisdictional theories advanced by the enforcement agencies in bringing FCPA enforcement actions against foreign actors.

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