U.s. Foreign Corrupt Practices Act

However, not all companies succeed to comply with all regulation, even though apparently it looks that all operations are lawful. For instance, United States vs. Kay case, No. 05-20604, 2007 U.S. could lead to broader enforcement actions under the FCPA (“FCPA Gets Broader Reach”). The company President (Douglas Murphy) and Vice President for Caribbean Operations (David Kay) at American Rice, Inc. took several steps in order to reduce sales and taxes costs to rice exported to Haiti. Even though their actions included paying officials to resolve tax issues, underreporting imports to reduce duties and taxes, paying officials to accept the underreporting, the district court granted a motion to dismiss the indictment, holding that the scope of FCPA did not extend to paying foreign officials for the purpose of reducing taxes. In contrast, the court of appeal reversed in United States vs. Kay, holding that bribes paid to foreign officials in consideration for unlawful evasion of sales taxes fall within FCPA. As a result, the jury found Kay and Murphy guilty of violating the FCPA by paying foreign officials to retain their business in Haiti (“FCPA Gets Broader Reach”). Moreover, the court rejected defendants’ argument that its interpretation of the FCPA extended criminal liability under the statute

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:

Evidence of bribery or erroneous accounting is enough proof for the government to file a case against an individual or company regardless of intent, under the FCPA laws (Clayton, 2011). There are three types of improper violations for the anti-bribery provision and they include: the issuer, domestic concern, the foreign national and businesses. The issuers are the ones that are registered in the US or are required to file Security and Exchange Commission. Domestic concern is any person or business that has their place of business in the US or is under the US law. Lastly, the foreign nationals and business in which deals with corrupt payments that are made in the United States, there are also the third parties and agents that are as well included and have the same conditions apply to them as they do to the issuer, domestic concern, and the foreign national and businesses. The second provision that is involved with the FCPA is the Accounting provision and that consist of contracts enforcing Securities and Exchange Commission. The SEC enforces the Foreign Corrupt Practices Act (FCPA) by bringing the civil actions against the issuers and their officers, directors, employees, and agents. FCPA has two accounting requirements that are recordkeeping and internal controls. The recordkeeping is there to ensure that the books, records, and accounts are held at the standards of what the company should be at. This is designed to cover business

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

The Foreign Corrupt Practices Act of 1977- is a U.S. Federal Law that prohibits any U.S. citizen from bribing a foreign official for the purpose of obtaining

The FCPA is unique. Throughout history, governments have had laws making it illegal for governmental officials to take a bribe. One basic provision of the FCPA is that it prohibits U.S. partnerships, companies, and organizations from not only giving payments but also offering or authorizing payments to foreign officials or political parties with the objective of encouraging or assuring business relationships.

Under the Racketeer Influenced and Corrupt Organization Act (RICO) in a criminal or civil law suit a pattern of racketeering activity must be ascertained by proving at least two acts of racketeering activity have been performed within an interval of ten years. This law could not be upheld in Sedina, SPRL v Inrex Co., 473 US 479 (1985) as two predicate acts could not be maintained (Twomey, 2013).

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

If Weinhardt offered Lee the bribe to acquire Lee’s business it would violate the Foreign Corrupt Policies Act. Even though Weinhardt is expatriated he is still a citizen of the United States and is therefore the Foreign Corrupt Policies Act still does apply to him. He may be living in another country and working there but he is a United States citizen. In the article it mentions that in South Korea had different local standard accounting practices and was ranked forty sixth in the Corrupt Perceptions Index. A company could establish a “sales expense” account valued up to one percent of the company’s total gross sales amount and didn’t need receipts or documentation as to where this money went for tax auditors. Nevertheless, this practice was common among the locals, not among the foreign companies that did business in that region.

Yes, I think that the payments outlined on pages 12 and 13 should be considered corrupt practices because of the way they were registered in the company’s books -it was in compliance with the FCPA because of the anti-bribery provision and the books and records provision.

In 2013, GlaxoSmithKline was convicted by the Chinese government in 2013 and was fined $490 million in bribery to doctors and hospitals in order to boost its sales and raise product prices (GlaxoSmithKline Fined $490m by China for Bribery, 2014). GSK utilized travel agencies to create

1. Describe the economic and social impact of bribes and other similar payments in emerging economics.

The payments do meet the approved requirements under the Foreign Corrupt Practices Act and should be paid if it is within her scope of her company’s policies for transactions

Mr. Chong knows about recent cases of corporate bribery in Malaysia and in the retail industry. There had been scandals regarding foreign investors who bribed public officials or financed government programs to obtain business privileges or competitive advantage (Inkpen, 2010). Moreover, there was a recent case of bribery involving a Jextra’s country manager in the Philippines. More likely, this manager also encountered similar ethical dilemmas like Mr. Chong. Some individual factors that may have driven him to act unethically in the Philippines could have been pressure from the company to expand and gain competitive advantage in the region. Alternatively, he might have simply wanted to advance his career as a country manager, lacked of ethics or did not know the local laws regarding bribery. Additionally, he might not have received or requested support from the top management regarding the social and ethical issues raised in the Philippines. Mr. Chong, as an experienced manager, should have anticipated that he would encounter legal and ethical risks in Malaysia.