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A Resource Guide to the U.S. Foreign Corrupt Practices Act

Chapter 1 IntroductionFCPAA Resource Guide to the Foreign Corrupt Practices ActBy the Criminal Division of the Department of Justice and the Enforcement Division of the Securities and Exchange CommissionThis Guide is intended to provide information for businesses and individuals regarding the Foreign Corrupt Practices Act (FCPA). The Guide has been prepared by the staff of the Criminal Division of the Department of Justice and the Enforcement Division of the Securities and Exchange Commission. It is non-binding, informal, and summary in nature, and the information contained herein does not constitute rules or regulations.

This guide is intended to provide information for businesses and individuals regarding the U.S. Foreign Corrupt Practices Act (FCPA). The guide has been prepared by the staff of the Criminal Division of the U.S. Department of Justice and the ... an effective corporate compliance program; and the different types of civil and criminal resolutions ...

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Transcription of A Resource Guide to the U.S. Foreign Corrupt Practices Act

1 Chapter 1 IntroductionFCPAA Resource Guide to the Foreign Corrupt Practices ActBy the Criminal Division of the Department of Justice and the Enforcement Division of the Securities and Exchange CommissionThis Guide is intended to provide information for businesses and individuals regarding the Foreign Corrupt Practices Act (FCPA). The Guide has been prepared by the staff of the Criminal Division of the Department of Justice and the Enforcement Division of the Securities and Exchange Commission. It is non-binding, informal, and summary in nature, and the information contained herein does not constitute rules or regulations.

2 As such, it is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, that are enforceable at law by any party, in any criminal, civil, or administrative matter. It is not intended to substitute for the advice of legal counsel on specific issues related to the FCPA. It does not in any way limit the enforcement intentions or litigating positions of the Department of Justice, the Securities and Exchange Commission, or any other government agency. Companies or individuals seeking an opinion concerning specific prospective conduct are encouraged to use the Department of Justice s opinion procedure discussed in Chapter 9 of this Guide .

3 This Guide is United States Government property. It is available to the public free of charge online at and Resource Guide TO THE Foreign Corrupt Practices ACTBy the Criminal Division of the Department of Justice and the Enforcement Division of the Securities and Exchange CommissionFOREWORDWe are pleased to announce the publication of A Resource Guide to the Foreign Corrupt Practices Act. The Foreign Corrupt Practices Act (FCPA) is a critically important statute for combating corruption around the globe. Corruption has corrosive effects on democratic institutions, undermining public accountability and diverting public resources from impor-tant priorities such as health, education, and infrastructure.

4 When business is won or lost based on how much a company is willing to pay in bribes rather than on the quality of its products and services, law-abiding companies are placed at a com-petitive disadvantage and consumers lose. For these and other reasons, enforcing the FCPA is a continuing priority at the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC). The Guide is the product of extensive efforts by experts at DOJ and SEC, and has benefited from valuable input from the Departments of Commerce and State. It endeavors to provide helpful information to enterprises of all shapes and sizes from small businesses doing their first transactions abroad to multi-national corporations with subsidiaries around the world.

5 The Guide addresses a wide variety of topics, including who and what is covered by the FCPA s anti-bribery and accounting provisions; the definition of a Foreign official ; what constitute proper and improper gifts, travel and entertainment expenses; the nature of facilitating payments; how successor liability applies in the mergers and acquisitions context; the hallmarks of an effective corporate compliance program; and the different types of civil and criminal resolutions available in the FCPA context. On these and other topics, the Guide takes a multi-faceted approach, setting forth in detail the statutory require-ments while also providing insight into DOJ and SEC enforcement Practices through hypotheticals, examples of enforce-ment actions and anonymized declinations, and summaries of applicable case law and DOJ opinion Guide is an unprecedented undertaking by DOJ and SEC to provide the public with detailed information about our FCPA enforcement approach and priorities.

6 We are proud of the many lawyers and staff who worked on this project, and hope that it will be a useful reference for companies, individuals, and others interested in our enforcement of the Act. November 14, 2012 Lanny A. BreuerAssistant Attorney GeneralCriminal DivisionDepartment of JusticeRobert S. KhuzamiDirector of EnforcementSecurities and Exchange CommissionCONTENTSC hapter 1: INTRODUCTION ..2 The Costs of Corruption 2 Historical Background 3 National Landscape.

7 Interagency Efforts 4 Department of Justice 4 Securities and Exchange Commission 4 Law Enforcement Partners 5 Departments of Commerce and State 5 International Landscape.

8 Global Anti-Corruption Efforts 7 OECD Working Group on Bribery and the Anti-Bribery Convention 7U N Convention Against Corruption 8 Other Anti-Corruption Conventions 8 Chapter 2: THE FCPA: ANTI-BRIBERY PROVISIONS.

9 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

10 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?


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