If you’re like me, you just can’t get enough of the U.S. Foreign Corrupt Practices Act (FCPA). I supplement my reading of FCPA law journal articles with FCPA anecdotes from multinationals, blog posts, newsletters . . . heck, even FCPA fan fiction, television series, movies and off-color haiku verse.
So I was very pleased to hear that the U.S. Department of Justice (DOJ) and Securities and Exchange Commission (SEC) had issued a joint guidance document on the FCPA. Yeah! Now I have something to do this weekend. The DOJ and SEC guide, entitled FCPA: A Resource Guide to the U.S. Foreign Corrupt Practices Act, can be found on either agency’s website (here’s a link to the SEC).
Seriously, this is really useful information from the two agencies that share jurisdiction over the anti-bribery (DOJ) and accounting (SEC) provisions of the law. In addition to introductory material suitable for novices, the guide also includes some user-friendly examples of problematic transactions and a discussion of some of the key areas of the law.
The guide runs about 130 pages and is comprehensive. It would be a great resource even if it wasn’t written by DOJ/SEC, but to have this straight from the enforcement authorities is extremely valuable. Not only does it cover the basics, but the guide also looks at all the major contentious issues that have been litigated in recent years, plus there is a discussion of best practices and compliance programs. What’s not to love? In-house counsel types must be thinking that the holidays came early this year.
Here are the chapter titles, FYI:
- Chapter 1: INTRODUCTION
- Chapter 2: THE FCPA: ANTI-BRIBERY PROVISIONS
- Chapter 3: THE FCPA: ACCOUNTING PROVISIONS
- Chapter 4: OTHER RELATED U.S. LAWS
- Chapter 5: GUIDING PRINCIPLES OF ENFORCEMENT
- Chapter 6: FCPA PENALTIES, SANCTIONS, AND REMEDIES
- Chapter 7: RESOLUTIONS
- Chapter 8: WHISTLEBLOWER PROVISIONS AND PROTECTIONS
- Chapter 9: DOJ OPINION PROCEDURE
- Chapter 10: CONCLUSION
And here’s a taste of what the anti-bribery section of the guide looks like:
- Who is Covered by the Anti-bribery Provisions?
- What Jurisdictional Conduct Triggers the Anti-Bribery Provisions?
- What Is Covered?—The Business Purpose Test
- What Does “Corruptly” Mean?
- What Does “Willfully” Mean and When Does It Apply?
- What Does “Anything of Value” Mean?
- Who Is a Foreign Official?
- How Are Payments to Third Parties Treated?
- What Affirmative Defenses Are Available?
- What Are Facilitating or Expediting Payments?
- Does the FCPA Apply to Cases of Extortion or Duress?
I haven’t read through the entire guide yet, and I also have a ton of law firm newsletters to look at, but if there’s something in there that would be particularly valuable from a China foreign investment point of view, I’ll take it up in a future post.