by James T. Parkinson
 
On December 20, 1977, President Jimmy Carter signed the Foreign Corrupt Practices Act into law, prohibiting both the bribery of foreign officials and the hiding of such transactions by publicly traded companies. In the intervening years, many significant trends in the business and legal worlds have placed FCPA compliance and enforcement at center stage for US and non-US companies alike. The two most important trends have been the globalization of commerce, and the enhanced international focus on fighting corruption.

When the FCPA was signed, far fewer companies claimed a global reach. In contrast, today’s interdependent markets for goods, services and access to capital make it increasingly common for even smaller companies to grow by developing international markets, or to source operations in multiple jurisdictions.

As a result, more companies are now subject to the FCPA, including many non-US companies that have found themselves subject to US jurisdiction either through their use of the US capital markets or by conducting more business within the United States. The advent of a number of new major economic players operating on both the supply and demand sides of the corruption equation has increased the complexity of this trend toward globalization.

As markets have globalized, the anti-corruption call issued by the FCPA has been answered. In 1997, 36 countries within the Organization for Economic Cooperation and Development adopted the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, calling for anti-corruption legislation in each of the signatory countries. Many of these countries now operate anti-corruption enforcement programs in close coordination with US authorities, as demonstrated by the number of enforcement actions in OECD countries. Additionally, the World Bank Group, United Nations and many other multilateral institutions have developed rigorous anti-corruption agendas in conjunction with non-governmental organizations such as Transparency International.

The anti-corruption movement continues to gather momentum, and in the past five years enforcement actions have increased markedly, both in the United States and in many other countries.  Accordingly, we offer Mayer Brown’s Pocket Guide to the Foreign Corrupt Practices Act as a tool for understanding the FCPA and identifying and avoiding corruption risks.

For a copy of A Pocket Guide to The Foreign Corrupt Practices Act email Somer McBride at smcbride@mayerbrown.com.

Table of Contents

Introduction
Overview of the Statute
    Anti-Bribery and Accounting Provisions
    Consequences of FCPA Violations
    Compliance Practice
    Conducting Business Under the FCPA
    Getting Started
Sample Self-Assessment Checklist for FCPA Risk
Sample Due Diligence Checklist for Joint Venture Partners, Third Party Relationships and Prospective Acquisitions
The Foreign Corrupt Practices Act (annotated)
    Periodical and Other Reports
    Prohibited Foreign Trade Practices by Issuers
    Prohibited Foreign Trade Practices by Domestic Concerns
    Prohibited Foreign Trade Practices by Persons Other than Issuers or Domestic Concerns
    Penalties
Alternative Fines Act
Legislative History: 1988 Amendments (excerpts)
    Standard of Liability for Acts of Third Parties (Agents)
    Exception for “Routine Governmental Action”