Anti Corruption Law

This case portrays the widely propagated and accepted phenomena of bribes and corruption in developing countries. Specifically how it affects every sector of the Ukrainian society, therefore making it difficult for the American investors to establish companies there and to prosper solely on doing good business. The case describes the types of obstacles and ethical dilemmas being created for the investors as a result of bribery and extortion.

OECD published Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and Related Documents to prevent bribery and corruption. The aim of this convention was making the bribery of a foreign public official a crime under their laws (International Monetary Fund, OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 2001). This document recommends to member countries that:

Someone who is abusing the power that is given to him or her defines corruption, however, the word in its self is more than a simple idea; it is an intricate network. Since people’s views about ethical and moral behavior affect the way corruption is examined, the word has a slightly different meaning to each person. Additionally, misconduct across various societies is viewed differently due to social and cultural borders. The criminal justice system has had many instances where corruption had affected the outcome of a case and has inserted itself into the legal process.

In 1977, Congress passed the Foreign Corrupt Practices Act (FCPA), which makes it unlawful for U.S. businesspersons or companies to pay, with money or anything else of value, to foreign officials to secure beneficial contracts. The anti-bribery requirements of the FCPA have applied to all U.S. persons since 1977. In 1998, certain amendments were revised and the anti-bribery requirements now apply to foreign firms and persons who cause an act in continuance of bribery within the United States. The government was attempting to restricted illegal behavior, which is why they implemented the Foreign Corrupt Practices Act after the SEC discovered that over 400 companies were sending corrupt payments to foreign government officials and

Each of these jurisdictions works together to keep aspects of FCPA from being violated. This law is not always prohibiting all payments to the foreign officials. The FCPA has an exception for anti-bribery prohibitions and that is called “ routine government action.” This exception is also given the names “facilitating” or “ grease payment.” The Foreign Corrupt Practices Act defines this “routine government action” as for a foreign official to perform in obtaining permits, licenses, or other official documents that enable then to do business in that country, processing government papers such as visa and work orders, protection services and conducting inspections, and anything that has similar nature (6). The Foreign Corrupt Practices Act (FCPA) has two affirmative defenses and they consist of assertion that payment in question was lawful under the laws of the foreign country, and the assertion that the payment was valued a bona fide expenditure (6). This affirmative defense is aimed to be for the issuer, domestic concern, or other person. In this affirmative defense there must be some type of written law authorizing or supporting the payment. The penalties for violating the Foreign Corrupt Practices Act are different from the provision that they fall under. For an individual and it is from the anti bribery

While reading this case analysis, The Foreign Corrupt Practices Act came into discussion as an underlying factor in Weihardt’s decision. The Foreign Corrupt Practices Act was enacted for the purpose of making it unlawful for certain classes of persons and entities to make payments to foreign government officials to assist in obtaining or retaining business. This practice applies to Weinhardt in the fact that he was given the opportunity to give Lee a bribe to obtain Lees’ business.

There are many corporate organizations that have expanded their business opportunities outside of the U.S. Consequently, these global organizations are required to conform to The Foreign Corrupt Practices Act of 1977 (FCPA). Under the FCPA, anti-bribery and accounting provisions exist for companies to identify unlawful acts and comply with requirements by maintaining accurate records of transactions and implementing internal controls. (DoJ, 2015a, FCPA: An Overview section, para. 2-3).

The legal aspect of the Foreign Corrupt Practices Act (FCPA) of 1977 is very critical, which is a U.S. Federal Law that prohibits any U.S. citizen from bribing a foreign official for the purpose of obtaining improper advantages to secure or retain a business. (Legal, I. U. (n.d.). The Foreign Corrupt Practice Act (FCPA) applies to all organizations that are recorded on any stock trade or operating a business in the United States. Cultural differences of business practices are a major

However, the law is not stringent enough. This can be illustrated by the comparison between Hong Kong and the UK insider dealing law. For

A Current Guide to Understanding the Foreign Corrupt Practices Act (FCPA) and Foreign Anti-Corruption Legislation regarding the Canadian, British, and Chinese Markets

The criminal liability of corporations is continuing to develop, and it is still finding its perfect shape. Prior to the 1940s, it was ruled that corporations could not be criminally liable based on the statement that corporations have “no soul to be damned; no body to be kicked” . This rule was then replaced by the identification theory, where the corporation would be held criminally liable if the human actor who committed the crime was the directing mind of the corporation . The identification theory was the replaced with the recent amendments to the Criminal Code, expanding and redefining the circumstances in which corporations may be held criminally responsible under the Code . This last amendment was even described as “revolutionary.” The same evolution happened with the anti-corruption and anti-bribery rules in the Canadian legal system, as they continue to develop.

Some say that the Chinese government allows tolerable corruption to motivate officials so that they do not have to reward them in other materialistic ways that are incongruent to the benevolent image of the party (Fan, Grossman, 2000). Anti-corruption activities only target on exposing and punishing smaller cases to appease the masses while corruption at the higher levels is often left unscathed (Pei, 2007).

Analyze the influence of Foreign Corrupt Practices Act of 1977, as well as the influence of local, national, and international legislation.

International businesses need to be cautious of the risk of damaging their reputation and any corruption they can be involved in. Inefficient regulations and bribes are a few examples of activities that would be considered corruptions and it can cause great harm to the business and everyone who works for them.

This does not set a good example for the employees and can be harmful to the future of the company. Ensuring that bribery stops can solve many of the problems discussed above. Some feasible solutions are being recommended to help the company in both short term and long term. First of all, all employees including managers should be given training and education about bribery, corruption and what’s deemed illegal according to the law. Explicit measures should be suggested on how they can avoid supporting corruption and also where they can report to in case a situation where dishonesty is involved arises.