NCJ Number
73158
Journal
University of Michigan Journal of Law Reform Volume: 13 Issue: 1 Dated: (Fall 1979) Pages: 158-195
Date Published
1979
Length
38 pages
Annotation
The background and provisions of the 1977 Foreign Corrupt Practices Act (FCPA) are examined, particularly its definitions of criminal activities. A discussion of possible international agreements to prohibit bribery is also presented.
Abstract
Passage of the FCPA was prompted by disclosures that U.S. companies had paid enormous bribes to foreign government officials to obtain contracts, protection, and regulatory favors. Congressional objectives underlying the legislation were complex, but they included a desire to improve the American business image abroad, prevent the spread of corruption in friendly governments, and restore legitimate commercial competition. The securities issuer provision, Section 103 of the FCPA, forbids payments by securities issuers or certain persons connected with an issuer to certain types of foreign government officials for the purpose of influencing job performance or exerting influence which would help a company obtain or retain business. The provision covers issuers required to register or report under the 1934 Securities Exchange Act and persons related to such issuers, although definitions concering the latter relationship are ambiguous. The domestic concerns provision, Section 104, enacts identical provisions for persons and domestic companies other than security issuers. Because the FCPA stipulates that payments must be made corruptly before companies are considered to be acting outside the law, the case law relating to corruption and bribery is reviewed. Conflicts between laws of other nations on bribery and American precedents are explored. The FCPA excludes foreign government employees whose responsibilities are ministerial or clerical rather than discretionary in order to allow grease payments by U.S. companies. Under the FCPA, the Securities and Exchange Commission continues its responsibility for investigating foreign bribes, although the new legislation did not rectify existing inadequacies in the disclosure requirements of the 1934 law. The accounting provisions, however, may improve corporate responsibility. Stringent requirements governing exemptions for national security reasons should close this loophole for evading the Act. A major weakness of the FCPA is that it cannot affect foreign-based enterprises, thus giving them a competitive advantage over American corporations. The State Department has tried to negotiate the multinational treaties necessary to improve American trade through the United Nations and the Organization for Economic Cooperation and Development. The effectiveness and fairless of the FCPA depends on efforts to obtain international prohibitions and judicial clarification of the law's provisions. Over 200 footnotes are provided.