How is bribery defined under the Foreign Corrupt Practices Act?

On Behalf of | Jul 1, 2020 | White Collar Crime

The U.S. Foreign Corrupt Practices Act (FCPA) prohibits United States citizens, residents and businesses from engaging in bribery.

The U.S. Department of Justice and the U.S. Securities and Exchange Commission explain how your actions may violate the FCPA’s anti-bribery rules.

What activities are regulated by the FCPA?

Your activities may fall under the scope of the FCPA if you pay, offer to pay, promise to pay or authorize the payment of money or items of value to a foreign official with the intent to achieve a business advantage. This corrupt intent may trigger an FCPA violation even if the foreign official does not solicit, accept or receive the bribe.

Under the FCPA, bribes include “anything of value.” In addition to cash, this may include travel expenses, entertainment or expensive gifts. Items gifted as a sincere token of gratitude may not violate the FCPA if they are permitted under local law, given transparently and accurately recorded in the giver’s books.

Even charitable donations may fall within the scope of items of value. Before making a charitable gift in a foreign country, you should consider the intention behind the payment. Are you making the payment with the condition that you will receive business or some other benefit? Is the charity associated with a foreign official who has the power or authority to offer unfair advantages to your business?

What benefits may constitute a business advantage?

Law enforcement officials interpret the FCPA broadly and may assert a violation of the act based on your receipt of many different types of benefits, including:

  • Procuring a contract, influencing the contract process or preventing the termination of a contract
  • Avoiding taxes or penalties
  • Obtaining exemption from regulations
  • Obtaining non-public bid tender information
  • Getting around import regulations
  • Influencing decisions concerning lawsuits or enforcement actions

The anti-bribery rules apply to communications and transactions within and outside of the U.S.

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