The US Foreign Corrupt Practices Act (FCPA) of 1977 is the most widely enforced anti-corruption law. It is the first to introduce corporate liability, responsibility for third parties and extraterritoriality for corruption offences, meaning companies and persons can be held criminally and civilly responsible for corruption offences committed abroad.
The FCPA’s anti-bribery provisions apply broadly to three categories of persons or entities: ‘issuers’, ‘domestic concerns’ and certain persons and entities under ‘territorial jurisdiction’. These provisions prohibit (1) US persons and companies (domestic concerns), (2) companies organised under US laws, (3) companies that have their principal place of business in the US, (4) companies listed on stock exchanges in the US or (5) companies required to file periodic reports with the SEC (issuers), and (6) certain foreign persons and businesses acting while in the territory of the US (territorial jurisdiction) from making corrupt payments to foreign officials to obtain or retain business.
The FCPA provides a narrow exception for facilitation payments. The exception applies only to payments made to foreign officials with the purpose to ‘facilitate or expedite routine governmental action’. The exception focuses on the purpose of the payment rather than on its value. Facilitation payments that are not properly documented may violate the FCPA’s accounting provisions.