FCPA: Amendment to the Foreign Corrupt Practices Act – Another Perspective

Proposals for and against amending the Foreign Corrupt Practices Act, the US Federal law against government bribery in international business, have been percolating for the past 18 months. US Chamber of Commerce took a lead role, sponsoring a paper titled “Restoring Balance” in October 2010, advocating the position that substantial amendments to the FCPA are required to promote international business by US companies. Other groups have taken positions opposing any revisions that would weaken the FCPA or impede enforcement. The main arguments against the Chamber’s proposed amendments were set out in “Bursting Bribery” published in September 2011 by the Open Society Foundations. The possibility of amendments has prompted the Department of Justice to commit to issuing some form of written “Guidance” within the next few months. All parties profess to agree with the basic reason the FCPA exists: bribery in international business is a serious crime that should be deterred and punished.

The Chamber is promoting 5 amendments which, taken as a whole, would make it significantly more difficult for the DOJ and SEC to enforce US criminal law against bribery in international business by US corporations. The advocates on the other side are opposing the Chamber’s proposals, but not advocating significant amendments of their own. Status quo is to leave the FCPA as–is and enforcement to the fairly broad discretion of the Department of Justice and SEC.

In reviewing the positions of both sides, neither side has mentioned several potential amendments that would make the law more certain for US business people and promote the goal of reducing corruption in international business. Indeed the proposals in “Restoring Balance” would require complex new definitions and rules which will make the FCPA even more confusing and difficult for US business people to understand ...

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