FCPA—who it applies to and what it prohibits (US)

The following Corporate Crime practice note provides comprehensive and up to date legal information covering:

  • FCPA—who it applies to and what it prohibits (US)
  • What is the FCPA and what does it prohibit?
  • Who does the FCPA apply to?
  • What are the statutory defences to the anti-bribery provisions of the FCPA?
  • Who enforces the FCPA?

FCPA—who it applies to and what it prohibits (US)

What is the FCPA and what does it prohibit?

The Foreign and Corrupt Practices Act (FCPA) was enacted in 1977 and amended after complaints from industry that it was restricting business to expressly allow facilitation payments to be made.

The FCPA is part of the US Securities Exchange Act of 1934 and has two main provisions: 

  1. •

    the anti-bribery provisions; and

  2. •

    the books and records and internal control provisions

The FCPA anti-bribery provisions prohibit the corrupt payment of money or 'anything of value' to a 'foreign official' in order to 'obtain or retain business'. Things of value include excessive travel or entertainment expenses, a promise of future employment or any gifts which are intended to obtain or retain business.

The FCPA defines 'foreign official' as

'any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization'.

A foreign official is any foreign government leader, government employees as well as government agencies which provide licences or administer taxes. Under the Bribery Act 2010 (BA 2010), any foreign public official includes anyone who holds a foreign legislative or judicial position or those

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