Материал: guide
CONTENTS
Chapter 1: INTRODUCTION . . . . . . . . . . . . . |
. . . . . . . . . . . . . . . . . . . . . 2 |
The Costs of Corruption |
2 |
Historical Background |
3 |
National Landscape: Interagency Efforts |
4 |
Department of Justice |
4 |
Securities and Exchange Commission |
4 |
Law Enforcement Partners |
5 |
Departments of Commerce and State |
5 |
International Landscape: Global Anti-Corruption Efforts |
7 |
OECD Working Group on Bribery and the Anti-Bribery Convention |
7 |
U.N. Convention Against Corruption |
8 |
Other Anti-Corruption Conventions |
8 |
Chapter 2: THE FCPA: ANTI-BRIBERY PROVISIONS . |
. . . . . . . . . . . 10 |
Who Is Covered by the Anti-Bribery Provisions? |
10 |
Issuers—15 U.S.C. § 78dd-1 |
10 |
Domestic Concerns—15 U.S.C. § 78dd-2 |
11 |
Territorial Jurisdiction—15 U.S.C. § 78dd-3 |
11 |
What Jurisdictional Conduct Triggers the Anti-Bribery Provisions? |
11 |
What Is Covered?—The Business Purpose Test |
12 |
What Does “Corruptly” Mean? |
14 |
What Does “Willfully” Mean and When Does It Apply? |
14 |
What Does “Anything of Value” Mean? |
14 |
Cash |
15 |
Gifts, Travel, Entertainment, and Other Things of Value |
15 |
Charitable Contributions |
16 |
Who Is a Foreign Official? |
19 |
Department, Agency, or Instrumentality of a Foreign Government |
20 |
Public International Organizations |
21 |
How Are Payments to Third Parties Treated? |
21 |
What Affirmative Defenses Are Available? |
23 |
The Local Law Defense |
23 |
Reasonable and Bona Fide Expenditures |
24 |
What Are Facilitating or Expediting Payments? |
25 |
Does the FCPA Apply to Cases of Extortion or Duress? |
27 |
Principles of Corporate Liability for Anti-Bribery Violations |
27 |
Parent-Subsidiary Liability |
27 |
Successor Liability |
28 |
Additional Principles of Criminal Liability for Anti-Bribery Violations: Aiding and Abetting and Conspiracy |
34 |
Additional Principles of Civil Liability for Anti-Bribery Violations: Aiding and Abetting and Causing |
34 |
What Is the Applicable Statute of Limitations? |
34 |
Statute of Limitations in Criminal Cases |
34 |
Statute of Limitations in Civil Actions |
35 |
Chapter 3: THE FCPA: ACCOUNTING PROVISIONS . . . . . . . . . . . . . . . . . |
. . . 38 |
What Is Covered by the Accounting Provisions? |
39 |
Books and Records Provision |
39 |
Internal Controls Provision |
40 |
Potential Reporting and Anti-Fraud Violations |
41 |
What Are Management’s Other Obligations? |
42 |
Who Is Covered by the Accounting Provisions? |
42 |
Civil Liability for Issuers, Subsidiaries, and Affiliates |
42 |
Civil Liability for Individuals and Other Entities |
43 |
Criminal Liability for Accounting Violations |
44 |
Conspiracy and Aiding and Abetting Liability |
45 |
Auditor Obligations |
45 |
Chapter 4: OTHER RELATED U..S.. LAWS . . . . . . . . . . . . 48 . |
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Travel Act |
48 |
Money Laundering |
48 |
Mail and Wire Fraud |
49 |
Certification and Reporting Violations |
49 |
Tax Violations |
49 |
Chapter 5: GUIDING PRINCIPLES OF ENFORCEMENT . . . . . . . . . . . |
. 52 |
What Does DOJ Consider When Deciding Whether to Open an Investigation or Bring Charges? |
52 |
DOJ Principles of Federal Prosecution |
52 |
DOJ Principles of Federal Prosecution of Business Organizations |
52 |
What Does SEC Consider When Deciding Whether to Open an Investigation or Bring Charges? |
53 |
Self-Reporting, Cooperation, and Remedial Efforts |
54 |
Criminal Cases |
54 |
Civil Cases |
55 |
Corporate Compliance Program |
56 |
Hallmarks of Effective Compliance Programs |
57 |
Commitment from Senior Management and a Clearly Articulated Policy Against Corruption |
57 |
Code of Conduct and Compliance Policies and Procedures |
57 |
Oversight, Autonomy, and Resources |
58 |
Risk Assessment |
58 |
Training and Continuing Advice |
59 |
Incentives and Disciplinary Measures |
59 |
Third-Party Due Diligence and Payments |
60 |
Confidential Reporting and Internal Investigation |
61 |
Continuous Improvement: Periodic Testing and Review |
61 |
Mergers and Acquisitions: Pre-Acquisition Due Diligence and Post-Acquisition Integration |
62 |
Other Guidance on Compliance and International Best Practices |
63 |
Chapter 6: FCPA PENALTIES, SANCTIONS, AND REMEDIES . |
. . . . . . . . . . . 68 |
What Are the Potential Consequences for Violations of the FCPA? |
68 |
Criminal Penalties |
68 |
U.S. Sentencing Guidelines |
68 |
Civil Penalties |
69 |
Collateral Consequences |
69 |
Debarment |
70 |
Cross-Debarment by Multilateral Development Banks |
70 |
Loss of Export Privileges |
71 |
When Is a Compliance Monitor or Independent Consultant Appropriate? |
71 |
Chapter 7: RESOLUTIONS . . . . . . . . . . . . . . . . . . . . . . |
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. 74 |
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What Are the Different Types of Resolutions with DOJ? |
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74 |
Criminal Complaints, Informations, and Indictments |
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74 |
Plea Agreements |
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74 |
Deferred Prosecution Agreements |
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74 |
Non-Prosecution Agreements |
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75 |
Declinations |
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75 |
What Are the Different Types of Resolutions with SEC? |
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76 |
Civil Injunctive Actions and Remedies |
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76 |
Civil Administrative Actions and Remedies |
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76 |
Deferred Prosecution Agreements |
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76 |
Non-Prosecution Agreements |
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77 |
Termination Letters and Declinations |
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77 |
What Are Some Examples of Past Declinations by DOJ and SEC? |
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77 |
Chapter 8: WHISTLEBLOWER PROVISIONS AND PROTECTIONS . |
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.82. |
Chapter 9: DOJ OPINION PROCEDURE . . . . . . . . . . . |
. 86 . |
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Chapter 10: CONCLUSION . . . . . . . . . . . . |
90. . . . . . . |
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APPENDIX: THE FOREIGN CORRUPT PRACTICES ACT . . . . . |
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. 92 |
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APPENDIX: ENDNOTES . . . . . . . . . . . . . . . . . . . . . . . |
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.104 |
Corporate bribery is bad business. In our free market system it is basic that the sale of products should take place on the basis of price, quality, and service. Corporate bribery is fundamentally destructive of this basic tenet. Corporate bribery of foreign officials takes place primarily to assist corporations in gaining business. Thus foreign corporate bribery affects the very stability of overseas business. Foreign corporate bribes also affect our domestic competitive climate when domestic firms engage in such practices as a substitute for healthy com-
petition for foreign business.1
—United States Senate, 1977
