Foreign Corrupt Practices Act (FCPA)
(U.S. law) The FCPA makes it unlawful for any United States citizen or firm (or any person who acts on behalf of a U.S. citizen or firm) to offer, pay, transfer, promise to pay or transfer, or authorize a payment, transfer, or promise of money or anything of value to any foreign appointed or elected government official, foreign political party, or candidate for a foreign political office for a corrupt purpose, (that is, to influence a discretionary act or decision of the official) and for the purpose of obtaining or retaining business.
It is also unlawful for a U.S. business owner to make such an offer, promise, payment, or transfer to any person if the U.S. business owner knows, or has reason to know, that the person will offer, give, or promise directly or indirectly all or any part of the payment to a foreign government official, political party, or candidate. For purposes of the FCPA, the term knowledge means actual knowledge–the business owner in fact knew that the offer, payment, or transfer was included in the transaction–and implied knowledge–the business owner should have known from the facts and circumstances of a transaction that the agent paid a bribe, but failed to carry out a reasonable investigation into the transaction.
The provisions of the FCPA do not prohibit payments made to facilitate a routine government action. A facilitating payment is one made in connection with an action that a foreign official must perform as part of the job. In comparison, a corrupt payment is made to influence an official’s discretionary decision. For example, payments are not generally considered corrupt if made to cover an official’s overtime required to expedite the processing of export documentation for a legal shipment of merchandise, or to cover the expense of additional crew to handle a shipment.
Any person may request the Department of Justice to issue a statement of opinion on whether specific proposed business conduct would be considered a violation of the FCPA. The opinion procedure is detailed in 28 C.F.R. Part 77. If the Department of Justice issues an opinion stating that certain conduct conforms with current enforcement policy, conduct in accordance with that opinion is presumed to comply with FCPA provisions. Contact: United States Department of Justice, Washington, DC.