The document outlines the key provisions of the Foreign Corrupt Practices Act (FCPA) of 1977. It prohibits bribery of foreign government officials and requires companies whose securities are listed in the US to comply with accounting transparency provisions. The FCPA bans offering, promising, or giving anything of value to a foreign official to influence their acts or decisions or gain an improper business advantage. It applies to US companies and citizens operating abroad, as well as some foreign firms engaged in acts within US territory.

1. The Foreign Corrupt Practices Act
A brief outline
Michael Ling
November 2018
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Series 1: Corruptive Practices

2. What is FCPA?
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The Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. 78dd-1, et
seq. ("FCPA"), was enacted for the purpose of making it unlawful for certain classes
of persons and entities to make payments to foreign government officials to assist in
obtaining or retaining business.
Specifically, the anti-bribery provisions of the FCPA prohibit the willful use of the
mails or any means of instrumentality of interstate commerce corruptly in
furtherance of any offer, payment, promise to pay, or authorization of the payment
of money or anything of value to any person, while knowing that all or a portion of
such money or thing of value will be offered, given or promised, directly or indirectly,
to a foreign official to influence the foreign official in his or her official capacity,
induce the foreign official to do or omit to do an act in violation of his or her lawful
duty, or to secure any improper advantage in order to assist in obtaining or retaining
business for or with, or directing business to, any person.
https://www.justice.gov/criminal-fraud/foreign-corrupt-practices-act
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3. What is FCPA?
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Since 1977, the anti-bribery provisions of the FCPA have applied to all U.S. persons
and certain foreign issuers of securities.
With the enactment of certain amendments in 1998, the anti-bribery provisions of the
FCPA now also apply to foreign firms and persons who cause, directly or through
agents, an act in furtherance of such a corrupt payment to take place within the
territory of the United States.
The FCPA also requires companies whose securities are listed in the United States to
meet its accounting provisions. See 15 U.S.C. 78m. These accounting provisions,
which were designed to operate in tandem with the anti-bribery provisions of the
FCPA, require corporations covered by the provisions to
(a) make and keep books and records that accurately and fairly reflect the
transactions of the corporation and
(b) devise and maintain an adequate system of internal accounting controls.
https://www.justice.gov/criminal-fraud/foreign-corrupt-practices-act
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4. Basics
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The FCPA prohibits bribery of foreign government
officials.
A “bribe” is an offer or promise of anything of value
made to a foreign official with intent to:
• obtain or retain business, OR
• secure an unfair business advantage
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5. Foreign officials
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A foreign official is any officer or employee of a
foreign government or any department, agency, or
instrumentality thereof.
• It Includes government-owned enterprises, e.g., national oil
companies (NOC’s)
• It looks beyond “official” ownership and consider the
degree of control exerted by the government
• It is difficult to determine in countries with
less-than-transparent governments
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6. Intent
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Intent or desire to wrongfully influence the recipient
OR
Intent to induce the recipient to misuse his official position
FCPA does not need the corrupt act to succeed in its purpose
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7. Where does FCPA apply?
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Are you or your company
§ an “issuer” ?
Or
§ a “domestic concern” ?
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8. Does FCPA apply to you or your company
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An “issuer” is any company
§ listed on a U.S. securities exchange
Or
§ traded on the over-the-counter market and
required to file SEC reports
Includes officers, directors, employees, agents, or
stockholders acting on behalf of an issuer, and any
coconspirators
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9. Does FCPA apply to you or your company
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A “domestic concern” is
§ Any individual who is a citizen, national, or resident of the
United States
or
§ Any corporation, partnership, association, joint-stock
company, business trust, unincorporated organization, or
sole proprietorship, and
1) principal place of business in U.S.
or
1) organized under the laws of any State or territory, possession,
or commonwealth of U.S.
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