Anti-Bribery Laws and Investigation: Background J O R D A N
S L O A N E
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have grown. There is the U.N. Convention
office; or to any other person knowing that
I. Impact of Corruption
Against Corruption (UNCAC) created in
something of value will be offered, given or
2003. UNCAC provides for mutual legal
promised directly or indirectly, to a foreign
assistance and cooperation on the recovery
government official for the purposes of
of assets. The Organisation for Economic Co-
influencing official action, inaction of the
Operation and Development (OECD) also
foreign government official; or inducing the
developed the Anti-Bribery Convention in
foreign government official to do or omit
1997 to establish “legally binding standards to
an action in violation of his lawful duty; or
criminalise bribery of foreign public officials
inducing the foreign government official to
in international business transactions” and
use his influence to affect an act or decision
to provide for a host of related measures
of the foreign government; or to secure an
that make this effective. The Anti-Bribery
improper advantage.
————————————————— Corruption affects governments, economics, and institutions. Corruption corrodes government and pushes out honest officials. Corruption also distorts economies. The empirical studies suggest there is a negative correlation between perceived levels of corruption and foreign direct investment. The main concern is how corruption impacts growth. Finally, corruption undermines support for democratic institutions. The impact of corruption has led to the U.S. Foreign Corrupt Practices Act (FCPA) and many other anti-corruption acts around the world that interact to help fight corruption. See https://www.sec.gov/spotlight/fcpa/ fcpa-resource-guide.pdf and https://www. justice.gov/criminal-fraud/foreign-corruptpractices-act. —————————————————
II. Multilateral Response ————————————————— The U.S. led the push for a multilateral response to anti-corruption. Previously, the U.S. was the only country with a statute forbidding the payment of bribes to foreign public officials. Since 1977, when the FCPA was passed, multilateral efforts
Convention is the first and only international
There are two affirmative defenses. The
anti-corruption instrument focused on the
FCPA does not apply to: (1) if the payment
supply side of the bribery transaction. In
was lawful under the written laws of the
response to OECD efforts, the U.K. created
country concerned; or (2) if the payment
its Bribery Act in 2010, regarded as stricter
or gift was a reasonable and bona fide
than the U.S. legislation. See https://www.
expenditure directly related to promotion/
oecd.org/corruption/ and https://www.sec.
demonstration of products or services or to
gov/spotlight/fcpa/fcpa-resource-guide.pdf.
the execution or performance of the contract.
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Such payments need to be recorded under the
III. FCPA
books/records requirements discussed below.
————————————————— The FCPA applies to any unlawful act by any issuer, domestic concern or person acting within the U.S. corruptly, which requires intent to make any offer, payment, promise to pay or to authorize payment of anything of value to a foreign official, international organization official, political party, party official, or candidate for public 34
Currents 24.1 2020
See https://www.sec.gov/spotlight/fcpa/fcparesource-guide.pdf and https://www.sec.gov/ spotlight/fcpa/fcpa-anti-bribery.pdf. A. FCPA’s Two Main Sections and Two Main Enforcement Agencies The FCPA continues to be the most important anti-bribery act in the U.S. The FCPA continues to be enforced by two agencies. The Securities and Exchange
