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Foreign Corrupt Practices Act

NCJ Number
American Criminal Law Review Volume: 47 Issue: 2 Dated: Spring 2010 Pages: 647-679
Rollo C. Baker
Date Published
33 pages
After reviewing the accounting provisions, anti-bribery provisions, and penalties of the Federal Foreign Corrupt Practices (FCPA) of 1977, this article discusses related global anti-corruption efforts, the importance of consistent internal compliance programs, and recent and anticipated related developments.
The FCPA is an amendment to the Securities Exchange Act of 1934. It was occasioned by an extensive Securities and Exchange Commission investigation and voluntary disclosure program that revealed U.S. companies were engaged in bribing foreign officials in order to secure business with their countries. The FCPA was enacted to counter such bribery of foreign officials. Upon realizing that U.S. businesses faced a competitive disadvantage in international markets, however, the FCPA was amended in 1988 and again in 1998 in order to provide affirmative defenses and encourage international anticorruption efforts that would foster a level business playing field. Traditionally, most FCPA enforcement proceedings have involved civil actions by the SEC for violations of accounting provisions. The anti-bribery provisions of the FCPA prohibit specified parties from corruptly paying or offering to pay, directly or indirectly, money or anything of value to a foreign official, a foreign political party or party official, or candidate for foreign political office for the purpose of obtaining or retaining business or directing business to any person. In addition to reviewing elements of offenses under the FCPA, the article explains penalties under U.S. Sentencing Guidelines that pertain to individuals and corporations. Recognizing that compliance with FCPA provisions may handicap American businesses in competition with foreign businesses; this article discusses efforts to globalize anti-corruption efforts. The article concludes with an analysis of recent and anticipated trends in the aggressive enforcement of FCPA provisions against American companies operating in foreign markets as well as against foreign companies trading on U.S. exchanges and benefiting from U.S. capital markets. 216 notes


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