Anti-Bribery Provisions

• The anti-bribery provisions of the FCPA make it illegal for any individual, group or corporate entity to bribe a foreign government official with the intent of exchanging payment for the obtaining or retention of business. The specific language prohibits quid pro quo (this for that) relationships.
  
  

Bribery Penalties

• The Department of Justice (DOJ) enforces the anti-bribery provisions of the FCPA. The only defense against bribery charges under the FCPA include proving that any payments made to foreign officials were in accordance with the established laws of that country. Also, the payments made were specifically related to the promotional activities of the U.S. firm within the recipient's country.
  
  Anyone not able to adequately defend against an FCPA bribery charge faces severe criminal penalties. Corporate entities can be fined up to $2 million; individuals (at any level of the business structure) can be fined up to $100,000 and imprisoned for up to five years.
  
  

Accounting Provisions

• The accounting and record keeping provisions of the FCPA require all publicly traded U.S. firms to maintain accounting systems that record and control any corporate disbursements of company assets. This means that bribes that are not based on cash (property, vacations, etc.) will also be contained under the FCPA. So-called "slush funds" maintained for the purpose of covering bribe payments and the mislabeling of payments are exposed by these provisions of the FCPA.
  
  

Accounting Penalties

• The Securities Exchange Commission (SEC) enforces the accounting and record keeping provisions of the act. Penalties for violation of these provisions are the same as violations of other securities laws. Violators may receive public censure and hefty fines, but there are no criminal penalties for accounting violations of the FCPA.
  
  

Considerations

• The language of the FCPA is unusually specific in its addressing bribes paid for the obtaining or retaining of business. In the business community, this has come to mean that payments made to facilitate the smooth function or increase the speed of ongoing business is allowed by the FCPA. For example, if the normal process of business includes a government official processing certain forms or clearing goods through customs, then payments to the appropriate official might not be covered under the FCPA--a controversial point at the very least.