Guide · Commercial

The Foreign Corrupt Practices Act: A Comprehensive Guide to Anti-Bribery, Books and Records, and Global Enforcement

15 U.S.C. § 78

Type
Guide
Jurisdiction
National
Date
2024-02-06
Topic
Commercial

A complete practitioner's treatment of the Foreign Corrupt Practices Act and the global anti-corruption regime it sits inside. Part I sets the statutory architecture and the history from the 1977 enactment through the 1988 and 1998 amendments. Part II works the anti-bribery provisions element by element, including corrupt intent, anything of value, the third-party knowledge standard, and the business purpose test. Part III covers the foreign official definition and the instrumentality analysis after Esquenazi. Part IV covers the facilitating payments exception and the two affirmative defenses and explains why sophisticated companies rely on neither. Part V covers the accounting provisions, which apply only to issuers, require no bribe, and have no materiality threshold. Part VI covers jurisdiction and the limit imposed by Hoskins. Part VII covers liability theories from respondeat superior through agency, parent-subsidiary, joint venture, and successor liability. Part VIII maps the recurring risk domains. Part IX sets out compliance program design against the published hallmarks. Parts X through XII cover internal investigation, the self-disclosure calculus, resolution forms, penalties, monitorships, and remediation. Part XIII covers the UK Bribery Act, Sapin II, and the other national regimes. Part XIV covers the adjacent statutes prosecutors use when the FCPA does not reach, and Part XV is the verification list.

The Foreign Corrupt Practices Act: A Comprehensive Guide to Anti-Bribery, Books and Records, and Global Enforcement

Commercial > Anti-Corruption | Published 6 February 2024 - Updated 1 June 2026 | UpLaw - uplaw.us

In brief. The FCPA is two statutes bolted together. The anti-bribery provisions criminalize corrupt payments to foreign officials and apply broadly. The accounting provisions apply only to issuers, require no bribe, have no materiality threshold, and generate more enforcement than the bribery provisions do. Compliance programs that focus only on the first half leave the larger exposure unmanaged. And any FCPA analysis that stops at U.S. law is incomplete, because the UK Bribery Act's failure-to-prevent offense reaches further and makes the compliance program itself the only defense.

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