Legal Studies Paper - Ellen Wiah Legal Studies 3562 Michael...

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Ellen Wiah Legal Studies: 3562 Michael Valenza December 6, 2016 Foreign Corrupt Practices Act: (FPCA) FCPA Background The Foreign Corrupt Practices Act (the “FCPA” or the “Act”) is one of the primary statutes in the U.S. for battling corruption around the world. Enacted in 1977, by congress after the Watergate scandals and the revelation of massive widespread corruption and bribery by U.S. business and companies at home and overseas (2012). The FCPA addresses both anti-bribery and accounting provisions. Though the FCPA cover both anti-bribery and accounting provisions this paper is going to focus on the anti-bribery provision. The anti-bribery provision prohibits U.S. persons and business from offering, paying, promising to pay or authorizing the payment of money or anything of value to a foreign official in order to influence any act, omission or decision of the foreign official. Needless to say, the use of an “agent” (meaning middlemen, lawyers or third parties) or doing any of these prohibited acts indirectly is also forbidden. The FCPA covers three categories of persons and entities. The issuers, domestic concerns, and other persons and entities (including foreign persons or their agents) that breach the law while on the territory of the United States. Furthermore, the FCPA applies to directors, employees, agents and shareholders. Originally the FCPA covered jurisdiction in the US but due to the widespread increase of international business and globalization congress requested that the President negotiate an international treaty with members of the Organization for Economic Co-operation and Development (OECD) to prohibit bribery in international business transactions. These negotiations inspired the formation of the Anti-Bribery Convention. The Anti-Bribery Convention further expanded the scope of the FCPA’s to include payments made to secure “any improper advantage”; reach certain foreign persons who commit an act in furtherance of a foreign bribe while in the United States; cover public international organizations in the definition of “foreign official”; add an alternative basis for jurisdiction based on nationality; and apply criminal penalties to foreign nationals employed by or acting as agents of U.S. companies. On February 15, 1999, the Anti-Bribery Convention was enacted and signed by 41 countries. As we learned in class conventions once sign by a country supersedes the domestic laws and becomes the law of that country. Impact and Cost of FCPA In domestic and international business transaction many companies are subjected to the FCPA and have felt the cost of disobeying the Act. Companies that are subjected to the FCPA— includes all U.S. companies and non-U.S. companies that have equity securities listed on a U.S.
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  • Fall '16
  • Foreign Corrupt Practices Act, Foreign Corrupt Practices

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