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Strategies for Minimizing Risk Under the Foreign Corrupt Practices Act and Related Laws

Mike Koehler

In the minds of some, complying with the US Foreign Corrupt Practices Act and related laws such as the UK Bribery Act is easy: ‘you just don’t bribe’. The reality, as sophisticated professionals know, is not so simple. This book is for professionals across various disciplines who recognize the difficulties of compliance and want to learn strategies for minimizing risk under aggressively enforced corporate bribery laws. The book uses issue-spotting scenarios to present risk and guides professionals through various components of compliance best practices from the fundamentals of conducting a risk assessment and effectively communicating compliance expectations, to implementing and overseeing compliance strategies.
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Chapter 2: The FCPA’s core anti-bribery provisions and related risk management strategies

Mike Koehler

Extract

With a clear understanding of why skills to spot risk is important, Chapter 2 begins to construct your “FCPA goggles” by analyzing the core elements of the FCPA’s anti-bribery provisions. To competently conduct the risk assessment skills exercise in Chapter 6, you must first be familiar with the myriad ways in which scrutiny and enforcement arise. This requires you to have a comprehensive understanding of legal authority and non-legal sources of information relevant to the core elements: anything of value, corrupt intent, foreign official, and obtain or retain business. You will quickly learn that while a suitcase full of cash, to a traditional foreign government official, to obtain a foreign government contract most certainly meets these elements, few modern enforcement actions concern this type of conduct. Rather, and the reason why the “just don’t bribe” narrative is often simplistic and naïve, the things of value often provided to alleged “foreign officials” consist of corporate hospitality, charitable donations, and internships or jobs for family members. In other words, the underlying conduct is often legal and morally acceptable in most instances, yet when directed to a specific type of individual, might be deemed bribery by government enforcement agencies. Throughout this chapter you will learn risk management strategies specific to certain core elements of the FCPA’s anti-bribery provisions that present the greatest compliance challenges and you will also have a chance to assess your acquired knowledge through several real-world issue-spotting scenarios.

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