NCJ Number
178088
Journal
American Criminal Law Review Volume: 36 Issue: 3 Dated: Summer 1999 Pages: 753-771
Date Published
1999
Length
19 pages
Annotation
The Foreign Corrupt Practices Act (FCPA) is reviewed with respect to its accounting and anti-bribery provisions, the affected parties, the elements of the provisions, requirements imposed, the affirmative defenses, and recent enforcement activity.
Abstract
The FCPA was enacted in 1977 in response to a series of corporate bribery scandals involving foreign government officials during the 1970s. The FCPA amends the Securities Exchange Act of 1934 by adding record-keeping and disclosure requirements for certain entities already covered by the Exchange Act's provisions. The accounting provisions apply regardless of whether or not the issuer engages in foreign activity. The record-keeping provisions aim to prevent a failure to record improper transactions, the falsification of records to conceal improper transactions, and the creation of records that are quantitatively but not qualitatively correct. Affirmative defenses include technical or insignificant accounting errors, ownership of less than half of a business concern, and good-faith efforts to encourage compliance. The bribery provisions forbid direct bribes and bribes made through intermediaries. A violation of the anti-bribery provisions contains five elements. The permissible defenses include those of routine governmental action; payments, gifts, and offers in accordance with the foreign country's laws; and payments, gifts, and offers that represent a reasonable and bona fide expenditure. The Department of Justice is responsible for all criminal enforcement under the FCPA. Penalties are stiff, may be criminal or civil, and may take the form of a suspension or revocation of the benefits of doing business with the government. The government has recently been working toward domestic implementation. Footnotes