Vorschläge für Änderungen des Foreign Corrupt Practices Act

Es gibt Stimmen in den USA, die Korrekturen des FCPA verlangen, da die jetzigen Regelungen (z.B. Haftung für die Tochterfirmen, die im Rahmen eines Firmenkaufes erworben wurden, und auch bei einer sorgfältigen Due Diligence Verstösse gegen den FCPA nicht erkennbar waren) zu weit gingen (wer sich als Unternehmen mit dem FCPA und den vielen diesbezüglichen Ermittlungsverfahren befasst, wird dem zustimmen können). Aber lesen Sie selbst (Auszug aus dem US-Blog von Thomas R.Fox): In a Whitepaper entitled “Restoring Balance-Proposed Amendments to the Foreign Corrupt Practices Act”, released earlier this month, authors Andrew Wiessmann and Alixandra Smith, writing on behalf of the US Chamber Institute for Legal Reform proposed amending the Foreign Corrupt Practices Act (FCPA), argued that the time is ripe to amend the FCPA to make the statute more equitable and its requirements clearer. They propose five (5) amendments to the FCPA which they argue would serve to improve the Act. In a prior post, we discussed two of those proposals, to create a compliance defe nse available to a company if it has an adequate compliance program, similar to the “adequate procedures” defense available under the UK Bribery Act and doing away with the doctrine of respondeat superior under the FCPA. This post will discuss, in greater specificity, three of their proposals: limiting successor liability, adding a willfulness requirement to the FCPA and limiting a corporate parent’s liability for the actions of its subsidiaries.

I. Successor Liability

The authors argues that under the current enforcement regime, a company may be held criminally liable under the FCPA not only for its own actions, but for the actions of a company that it acquires or becomes associated with via a merger—even if those acts took place prior to the acquisition or merger and were entirely unknown to the acquiring company. They believe that this standard of criminal liability is “generally antithetical to the goals of the criminal law, including punishing culpable conduct or deterring offending behavior.” Acknowledging that a company can reduce its risk by conducting due diligence prior to an acquisition or merger (or, in certain circumstances, immediately following an acquisition or merger); this however is not a legal defense. Therefore, even when an acquiring company has conducted exhaustive due diligence and immediately self-reported the suspected violations of the target company, it is still currently legally susceptible to criminal prosecution and severe penalties.

The authors argue that the FCPA should be amended so that a business, similarly to an individual, should not be held liable for the actions of another company with which it did not act in concert. However to able to get to this position, a company must engage in “sufficient due diligence” in investigating potential acquisition targets. The quantity …