Background Information about the FCPA
Generally, the U.S. Foreign Corrupt Practices Act of 1977 (“FCPA” or the “Act”) prohibits U.S. companies, their subsidiaries, as well as their officers, directors, employees, and agents from bribing “foreign officials” and also requires U.S. companies that issue debt or equity to maintain internal accounting controls and to keep books and records that accurately reflect all transactions.
Both the anti-bribery and the record-keeping and internal accounting controls provisions apply to worldwide operations. The FCPA is enforced jointly by the Securities & Exchange Commission (SEC) and the U.S. Department of Justice (DOJ).
TRACE International, Inc. is a non-profit membership organization that provides several core services and products, including: due diligence reports on commercial intermediaries; model compliance policies; an online Resource Center with foreign local law summaries, including guidelines on gifts and hospitality; in-person and online anti-bribery training; and research on corporate best practices. TRACE was founded to achieve economies of scale and set a common standard for two shared elements of anti-bribery compliance: due diligence reviews and anti-bribery training for business intermediaries and company employees based around the world.
TRAC Supply Chain Compliance Solution TRAC is the first global platform that captures, assesses and shares baseline due diligence information on organizations and individuals across the supply chain and assigns a universal ID number (TRAC Number) to all approved applicants. This secure, web-based tool creates a new standard for base level due diligence benefitting both buyers and sellers
BRIBEline a secure and anonymous place to report a bribe. BRIBEline’s purpose is to collect information about the official or quasi-official entities – governments, international organizations, security forces, state-owned enterprises, etc. – around the world that solicit bribes. Aggregate information will be made public to shine a spotlight on trouble spots so that they might be improved, and to allow companies to better manage risk. Tiếng Việt – Vietnamese.
Dow Jones Introduces First Global Anti-Corruption Database to Verify Employee Actions Dow Jones Anti-Corruption was developed following the request of a consortium of U.S. financial institutions which approached Dow Jones in 2007 to build a solution for managing exposure from the Foreign Corrupt Practices Act and other anti-corruption regulations. The institutions were subscribers of the Dow Jones Watchlist service (formerly Factiva Public Figures & Associates) and believed Dow Jones had the experience, resources and capability to develop a truly global anti-corruption solution.
The FCPA Blog News and Views About The United States Foreign Corrupt Practices Act. There are as many as 70 investigations ongoing, not including “dozens of internal company probes that haven’t been reported to the government , and may never be.”
FCPA News and Updates
Lex Mundi Publishes Best Practices in Preventing Fraud and Corruption in a Global Business (FCPA). Understanding the requirements of the FCPA is critical for in-house counsel of companies that do business internationally. The stakes at risk for FCPA violations are enormous today for both companies and individuals and under-managing or ignoring the risks is simply not an option. Julyu 17, 2009.
Senior officials face corruption charges in botched e-government Project 112 Launched in 2001, the VND3.83 trillion (currently $220 million) Project 112 aimed to install integrated software at administrative offices nationwide, train officials in IT, and link all agencies through one shared network. The project was scrapped in 2007 following financial, technical and legal problems like flawed software, wasteful spending, and poor planning. July 11, 2009
Government passes tough test getting FCPA conviction against Bourke. In addition to arguing that Bourke knew of the bribes, prosecutors also said he consciously avoided knowing about them, and that he had stuck his “head in the sand,” a phrase we’re told actually appears in the legislative history of the FCPA. The case is an example of DOJ’s aggressive interpretation of the FCPA’s knowledge standard. Where that standard was a bit vague before, it’s now more clear. And it’s not especially reassuring. ” struck fear in boards of companies across the country.” July 10, 2009
Many corruption cases processed slowly in Vietnam PM Nguyen Tan Dung confirmed that positive results were achieved in the anti-corruption fight in the past six months. Those involved in major corruption cases discovered recently have been strictly punished. He emphasized that reforming administrative procedures and operating the Government and business in a transparent and open manner are essential deterrents to corruption. July 9, 2009
Vietnam ratifies United Nations anti-corruption convention Vietnam’s government insists that fighting corruption a priority, but international donors have said the country is not doing enough. July 3, 2009
Philadelphia-based export company executive pleads guilty to corrupt payments He faces a maximum sentence of 10 years in prison. June 29, 2009
Donor nations ask Vietnam to crack down on corruption Articles on corruption in the Vietnamese media, which crested around the PMU-18 affair in early 2007, had since dropped to almost nothing as journalists who reported on the case were punished. The government at least to some degree realizes that the press has an important role to play. May 29, 2009
Vietnam ready to ratify UN Convention Against Corruption Corruption is rife in Vietnam, from contractors skimming funds off large-scale infrastructure projects to traffic cops extracting money from motorists. May 29, 2009
Construction industry set for clean-up of corrupt practices Construction accounts for 10% of Vietnam’s GDP, while losses in the international construction industry due to corruption amount to 15 to 30 percent. Vietnam’s Ministry of Construction is cooperating with the British Department for International Development in a “Construction Sector Transparency Initiative,” from 2008 – 2010. May 29, 2009
U.S. Cracks Down on Corporate Bribes under the Foreign Corrupt Practices Act, Wall Street Journal, May 26, 2009. Across five continents, at least 120 companies are under investigation up from 100 at the end of 2008. After the passage of the 2002 Sarbanes-Oxley Act, which is intended to hold executives more accountable for their companies’ actions, the Justice Department dusted off the FCPA law as part of the overall crackdown on corporate shenanigans. May 26, 2009.
Why Comply? The potential consequences of a Foreign Corrupt Practices Act violation for an individual are easy to explain and understand. Personal tragedies result from the losses of freedom, jobs and reputations, and there’s often financial ruin and damage to families. But the possible consequences to a corporation, and indirectly to its employees, shareholders, creditors, customers, suppliers and other stakeholders, are more complex. A good explanation, however, comes from Kellogg Brown & Root in its 2007 annual report.
KBR pleads guilty to FCPA violations, agrees to pay $402 million criminal fine Kellogg Brown & Root LLC (KBR), a global engineering, construction and services company based in Houston, pleaded guilty to charges related to the Foreign Corrupt Practices Act (FCPA) for its participation in a decade-long scheme to bribe Nigerian government officials to obtain engineering, procurement and construction (EPC) contracts to build liquefied natural gas (LNG) facilities on Bonny Island, Nigeria, valued at more than US$ 6 billion.
Siemens AG and Three Subsidiaries Pleade Guilty to FCPA Violations, Agree to Pay Fines Siemens AG and Three Subsidiaries Plead Guilty to Foreign Corrupt Practices Act Violations and Agree to Pay $ 450 Million in Combined Criminal Fines. Coordinated Enforcement Actions by DOJ, SEC and German Authorities Result in Penalties of $1.6 Billion. The SEC alleges that Siemens paid bribes on such widespread transactions as the design and construction of metro transit lines in Venezuela, power plants in Israel, and refineries in Mexico. Siemens also used bribes to obtain such business as developing mobile telephone networks in Bangladesh, national identity cards in Argentina, and medical devices in Vietnam, China, and Russia. According to the SEC’s complaint, Siemens also paid kickbacks to Iraqi ministries in connection with sales of power stations and equipment to Iraq under the United Nations Oil for Food Program. Siemens earned more than $ 1.1 billion in profits on these and several other transactions. Siemens has agreed to pay $ 350 million in disgorgement to settle the SEC’s charges, and a $ 450 million fine to the U.S. Department of Justice to settle criminal charges. Siemens also will pay a fine of approximately $ 569 million to the Office of the Prosecutor General in Munich, to whom the company previously paid an approximately $ 285 million fine in October 2007
Corruption and waste top Vietnam’s National Assembly agenda One delegate cited an example of waste with Ho Chi Minh City’s Hoang Hoa Tham Bridge project. It was planned to cost VND19 billion (US$ 1.2 million) with a construction period of 16 months. However, the project had not been completed as of March this year, ten years on, and the slow progress has pushed total investment up to VND120 billion ($ 7.3 million). Nov 1, 2008.
“Vietnam encourages press to take an active part in the fight against corruption in a comprehensive, thorough and lawful manner.” On Oct 15, the Hanoi People’s Court sentenced a reporter to two years in prison and another, who had pleaded guilty, to 24-month non-custodial sentence for “abusing democratic freedom rights to infringe upon the interests of the State, the legitimate rights and interests of organizations and individuals” in reporting on the PMU-18 corruption case.
Taking a corporate stand against global business corruption. The U.S. Foreign Corrupt Practices Act, the OECD Anti-bribery Convention, the UN Convention on Preventing Corruption have been joined by the business group “Partnering Against Corruption Initiative” (PACI) where nearly 130 companies from 39 nations are participating. One initiative is a requirement that bidders provide anti-bribery certicates on large contracts; another is that bidders provide a code of conduct and strong anti-bribery policies in their corporations.
Vietnam tries journalists for “abusing freedom and democracy” in PMU-18 corruption case. And two police officers for “deliberately revealing state secrets.” The journalists were arrested for reporting on a corruption scandal at the Transportation Ministry in 2005 and 2006, which led to the conviction of nine people accused of betting millions of dollars on European soccer matches with money embezzled from PMU-18, a unit that managed major road and bridge construction projects. PMU-18 received substantial funding from the World Bank and the Japanese government.
Fighting Bribery in Public Procurement in Asia and the Pacific An e-book with the key papers presented during the Regional Seminar on Fighting Bribery in Public Procurement organized by the ADB/OECD Anti-Corruption Initiative for Asia and the Pacific held in November 5-7, 2007 in Bali, Indonesia. This publication is addressed to practitioners, policy makers, and experts who wish to learn from other countries’ experiences in strengthening frameworks to protect public procurement from bribery and corruption risks.
U.S., Other Nations Step Up Battle Against Corrupt Payments More recently, working ties between prosecutors in different nations have been expanding. In a meeting in Paris, antibribery prosecutors from several countries gathered for the first time in an informal, roll-up-your-sleeves meeting, according to lawyers briefed on the meeting. There they discussed ongoing investigations and strengthened collaboration. Sep 12, 2008
Philadelphia company and employees indicted for corrupt payments to Vietnamese officials The indictment alleges that from approximately 1999 through 2008, the defendants engaged in a conspiracy to pay Vietnamese government officials bribes in order to secure lucrative contracts for Nexus Technologies Inc. The defendants’ customers in Vietnam are alleged to have included multiple Vietnamese government agencies, including the commercial branches of Vietnam’s Ministries of Transport, Industry and Public Safety. Sep 5, 2008.
Transportation deputy minister sacked for derelection of duty The Communist Party Secretariat issued a dispatch on August 12 instructing the government to sack Tien in light of previous irresponsibility, which caused dire consequences for an ODA management related to Project Management Unit 18 (PMU18).
Vietnam stands firm on corruption, says Foreign Ministry spokesman Japan called for Vietnamese co-operation in investigating the case of PCI allegedly bribing Vietnamese officials to win contracts for the East-West Highway in HCM City, he said and added that Vietnamese agencies were inquiring into the issue upon receiving the request and documents from the Japanese side on August 21.
Shanghai official gets death sentence for corrupt payments However, the court ordered the actual execution be “suspended” for two years, the reports said. Such sentences in China are usually commuted to life imprisonment.
U.S. Firm to pay $ 300,000 to settle FCPA violations in the Philippines The SEC filed a settled civil action charging Con-way Inc., a U.S. international freight transportation company, with violations of the books and records and internal controls provisions of the FCPA. According to the complaint, a Philippines-based firm controlled by Con-way made approximately $ 417,000 in improper payments to foreign government officials between 2000 and 2003. Without admitting or denying the allegations in the Commission’s complaint, Con-way agreed to pay a $ 300,000 civil penalty.
Siemens is close to reaching a settlement with the U.S. Securities and Exchange Commission in the bribery scandal that has led to a nearly complete turnover in top management, the Frankfurter Allgemeine Zeitung reports.
Vietnam urges cautious approach to Japanese corrupt payments allegations Vietnam’s Deputy Foreign Minister has suggested Japanese and Vietnamese media refrain from reporting on the issue until after the investigations concluded. Misleading media reports could make the public suspicious of Japan’s Official Development Assistance (ODA) policies and Vietnam’s determination to crack down on corruption, he said. Aug 17, 2008
Japan’s Foreign Ministry Bans PCI from ODA projects for two years for corrupt payments Foreign Minister Masahiko Komura said the ban would start on Aug 15, 2008. The suspension came after former and current senior PCI officials were arrested on suspicion of corrupt payments to win orders for construction projects in Vietnam financed by Japanese ODA.. Aug 15, 2008
Former Vice Minister of Transportation Faces Dismissal The government is set to formally fire the Vice Minister after he was held accountable for wrongdoings in the management of official development assistance at an agency under the transport ministry.. Aug 13, 2008
Olympics seen as corrupt payments tar pit The slogan for the Summer Olympics in Beijing may be One World, One Dream, but the games could turn out to be a nightmare for corporate participants. They hold the potential for a huge amount of litigation arising from charges of bribery and corruption of government officials by U.S. companies. “The Olympics present just such an opportunity for FCPA violations. The problem is that in China, almost everybody counts as a government official.”
Companies still need to crack down on corrupt payments to government officials The areas where FCPA violations were most likely to arise were in agent/consulting relationships (30.3 percent), foreign subsidiaries of U.S. companies (28.4 percent) and joint venture or strategic alliance partnerships (21.8 percent).
Japanese firm “hit with 15% bribe demand” for corrupt payments to Vietnamese official According to the Tokyo District Public Prosecutors Office Special Investigation Headquarters, former PCI managing director, Kunio Takasu, and other PCI officials paid more than 200 million yen between 2001 and 2006. Aug 8, 2008
Japanese prosecutors arrested four on suspicion of corrupt payments to a Vietnamese official Former executives of Japanese construction consultancy Pacific Consultants International arrested on suspicion of providing bribes of around $ 2.8 million to win orders for a Japanese government-financed road construction project.
Beware Foreign Corrupt Practices Act Promotional expenditures in a global market can spell trouble. When dealing with foreign entities, companies must take steps to ensure that payments for promotional activities are legitimate business expenditures able to withstand the scrutiny demanded by the FCPA.
World Bank Shots on Corruption (Wall Street Journal) The World Bank is nothing if not persistent. In recent weeks, the bank has announced low-interest loans of $ 320 million apiece to Bangladesh and Vietnam, despite their awful corruption records. July 23, 2008
Bribery cases shine light on oily characters “The use of third parties is among the riskiest business practices out there,” said Mark Mendelsohn, a deputy fraud chief in the Justice Department who specializes in Foreign Corrupt Practices Act violations. “They feature prominently in many of our criminal prosecutions.” Jul 17, 2008.
Developing in-house counsel’s role in the fight against global corruption Criminal penalties for violating the anti-bribery provisions for corporations and other business entities include a fine of up to $ 2 million; directors, officers, employees, stockholders and agents are subject to a fine of up to $ 100,000 plus up to 5 years imprisonment. No corporate indemnification is permitted for fines against individuals. In 2007, the SEC and DOJ imposed more than $ 135 million in fines, penalties, and disgorgement against corporations for violations of the anti-bribery provisions. The U.S. government’s enforcement efforts, which involve parallel investigations and less reliance on self-reporting, have continued in 2008. Further, inasmuch as the DOJ has not hesitated to enforce the FCPA against foreign-owned companies it seems likely that more non-U.S. probes by the DOJ are on the way. Jun 17, 2008.
PCI “bribed” Vietnamese official; head of HCM City body fingered in cash-for-ODA contract scandal Japanese investigators are looking into whether PCI violated the Unfair Competition Prevention Law by bribing an overseas public official. PCI received about 1.1 billion yen in fiscal 2001 for consultancy work on a project to build a highway traversing Ho Chi Minh City from east to west. In fiscal 2003, a consortium that included PCI and other firms won a contract worth about 2 billion yen. Both were for ODA works funded with yen loans. Jun 29, 2008.
Tricky Terrain on the Foreign Corrupt Practices Act The FCPA covers corrupt payments to what you think of as government officials. But in fact it applies to any employees of government departments, government agencies and instrumentalities. Then there are two other parts that apply to public companies. Those deal with books and records and internal controls. The issue for many public companies is that the books and records provisions are very easy to violate because there’s no intent required, unlike the anti-bribery provision where you have to have a corrupt intent. So it’s the broad definition of foreign officials, it’s the influence of gifts and entertainment and it’s also the use of intermediaries, agents, consultants, business facilitators, whatever you want to call it. Those really impact cases.
Wilbros Group Agrees to pay $ 32 million for Foreign Corrupt Practices Act (FCPA) Violations In connection with corrupt payments to Nigerian and Ecuadoran government officials. From late 2003 through March 2005, Willbros employees agreed to make corrupt payments totaling more than $ 6.3 million to Nigerian government officials to assist in obtaining and retaining a $ 387 million contract for work on a major engineering, procurement and construction gas pipeline project known as the Eastern Gas Gathering System (EGGS). May 14, 2008.
Two U.S. Senators asked the U.S. General Accountability Office to invest World Bank’s governance and anticorruption efforts “World Bank officials are too willing to accept corruption as just another cost of doing business in certain countries. That has to stop,” Senator Bayh said. “This institution is tasked with the important mission of alleviating global poverty, and Congress must insist that American money allocated for this mission is well spent.” May 14, 2008.
Reporters, police prosecuted for giving “false information” in PMU-18 corruption case Legal proceedings were commenced Monday, May 12 against two former police officers and two journalists on criminal charges related to the Project Management Unit (PMU) 18 case. They were active in the investigation of the PMU-18 corruption scandal in 2006 and 2007, which started with the arrest of Bui Tien Dung, the former director of PMU18, a state road and bridge building division with a $ 2 billion annual budget that is largely funded by the World Bank and Japan. Said one writers’ association leader: “It’s such an unfortunate incident, happening right at a time when our government has vowed to battle corruption even harder.” May 13, 2008.
Foreign Corrupt Practices Act (FCPA) investigations growing – are you at risk? FCPA legal conferences on corporate bribery ten years ago had maybe 60 people in the audience, and half were speakers from the various sessions. But in the fall of 2007, an FCPA conference had more than 400 people packed into the hotel ballroom. FCPA business is booming, advising multinational companies on how to design and implement compliance systems meant to deter and ferret out corrupt practices. 25 Apr 2008.
Bribery Abroad: Lessons from the Foreign Corrupt Practices Act Those involved in cross-border business, from directors in the U.S. to factory managers in Vietnam, now live and work by codes of conduct shaped by the FCPA. Avoiding the pitfalls of overseas bribery, and knowing how to respond if corrupt payments somehow happen, are required tools for international executives and managers, professionals and entrepreneurs. 18 Apr 2008.
Police drop charges against former vice minister of Transport accused of corruption He was arrested in April 2006, and released on bail in October 2007. Prosecutors could not find enough evidence to press charges against Nguyen Viet Tien, according to reports. Prosecutors were not available for comment. Mar 28, 2008.
World Bank Confidential In a corruption scandal involving five World Bank health projects in India, the remedial efforts focus on improving systems rather than insisting on accountability. Though the bank promises a “corporate review,” none of the bank officials directly responsible for supervising the five corrupted projects has been fired or had his career adversely affected. Meanwhile, the bank says it has “joined forces” with the Indian government to “stamp out corruption.” However, the Indian government categorically denies many of the findings. Mar 10, 2008.
Intel in Vietnam Vietnam, a country riddled with corruption, is set to be a major target for foreign investors. Intel is setting an impressive precedent with its commitment to do business cleanly. The world’s largest electronic components manufacturer, Intel, has pledged to build its $ 1 billion factory in graft-ridden Vietnam without corruption. The company has even signed an anti-corruption agreement with state-owned Saigon Hi-Tech Park (SHTP), where its largest chip plant will be located. 28 Feb 2008
U.S. firm to pay $ 300,000 penalty to resolve Foreign Corrupt Practices Act violations in India The firm has acknowledged responsibility for the actions of a subsidiary firm in India and its employees and agents who made various payments to officials of the Indian Railway Board (IRB), a government agency which is part of India’s Ministry of Railroads. These payments were made in order to: assist Pioneer in obtaining and retaining business with the IRB; schedule pre-shipping product inspections; obtain issuance of product delivery certificates; and curb what the subsidiary considered to be excessive tax audits. 14 Feb 2008.
Foreign Corrupt Practices Act: the Next Big Corporate Scandal? The Department of Justice and the Securities and Exchange Commission have picked up the pace of enforcement. The average number of FCPA criminal prosecutions and civil enforcement actions increased fourfold, and the average fine for corporate violators has steadily increased over the last several years. 2007 was a watershed year for FCPA enforcement for several reasons: Public companies disclosed over 50 pending government investigations relating to potential FCPA violations; enforcement actions brought by the DOJ and SEC doubled compared with the number brought in 2006; and enforcement actions brought against individuals hit an all time high. 29 Jan 2008.
Ethics must be global, not local The only way to build a great global company is with a single global standard of business practices, vigorously communicated and rigorously enforced. Applying “situation ethics” in developing countries is the fastest way to destroy a global organization. To sustain their success, companies must follow the same standards of business conduct in Shanghai, Mumbai, Kiev, and Riyadh as in Chicago.
Foreign Corrupt Practices Act Enforcement Trends in 2007 Signal Vigorous Enforcement U.S. Government enforcement of the FCPA will continue to send the message that *“bribery is bad for business.”* 2007 saw record fines, punishment of individuals with fines and jail sentences, international enforcement and cooperation, industry-specific investigations, and transactional due diligence reporting of FCPA violations. 25 Jan 2008.
Gauging Risk in Acquisition Due Diligence: The Hidden Deal Killer? (FCPA) Corruption is particularly challenging to investigate because of the generally limited evidence within the company itself. During an acquisition, forensic due diligence must proceed on a timeframe that does not threaten to derail the deal. 25 Jan 2008.
Film executive and spouse indicted under FCPA for corrupt payments to a Thai tourism official The Department of Justice announced the indictment of Gerald and Patricia Green, owners and operators of Film Festival Management (a private Los Angeles based private entertainment company), for conspiring to bribe an official with the Tourism Authority of Thailand (TAT) and for making improper payments to the TAT official in violation of the FCPA. According to the indictment, the Greens conspired to make and made more than $900,000 in improper payments to the TAT official in order to obtain film festival contracts and other contracts from TAT. According to the DOJ, the improper payments were part of an inflated budget scheme by which the TAT official would receive “commission” payments which were paid by the Greens to foreign bank accounts held by the TAT official’s daughter and friend. FCPA. 17 Jan 2008.
World Bank Disgrace (Wall Street Journal) Corruption is an endemic problem in bank projects, swallowing unknown but significant chunks from its $30 billion-plus annual portfolio. No less a problem has been the bank staff’s ferocious resistance to anything that might stand in the way of its lending ever more money to projects run by the same governments that tolerate this malfeasance. Jan 14, 2008.
Lucent Technologies Pays US$ 1 Million Fine to Resolve Foreign Corrupt Practices Act Allegations According to the U.S. Department of Justice, the company provided travel and other things of value to Chinese government officials and improperly accounted for certain corporate expenditures on behalf of those officials. Lucent spent millions of dollars on approximately 315 trips for Chinese government officials that included primarily sightseeing, entertainment and leisure. 21 Dec 2007.
Fighting Bribery in Public Procurement in Asia and the Pacific An e-book with the key papers presented during the Regional Seminar on Fighting Bribery in Public Procurement organized by the ADB/OECD Anti-Corruption Initiative for Asia and the Pacific held in November 5-7, 2007 in Bali, Indonesia. This publication is addressed to practitioners, policy makers, and experts who wish to learn from other countries’ experiences in strengthening frameworks to protect public procurement from bribery and corruption risks. Nov 5-7, 2007.
Senator Evan Bayh (D-IN) urged World Bank President Robert Zoellick to implement a series of reforms to more effectively measure the success of Bank-funded projects and guard against corruption and misuse of Bank funds. As Congress weighs funding for Bank, Bayh expresses broad concerns over effectiveness, corruption-fighting, lending practices, excessive staff pay. Oct 25, 2007.
Smiling Past Corruption (Wall Street Journal) Paul Volcker’s report on the bank’s anticorruption efforts painted a vivid picture of institutional resistance to having its projects “exposed as rife with corruption.” Mr. Volcker avoided specifics, though we revealed the devastating 2005 report by the bank’s internal anticorruption unit (INT) on bank funding for drug procurement in India. The losses in that one case ran into the tens of millions of dollars. Oct 11, 2007.
Investigator summons transport vice minister Nguyen Viet Tien re PMU-18 corruption Nguyen Viet Tien was general director of PMU18 prior to his promotion to vice minister of transport in 1998. His successor, Bui Tien Dung, spent million of dollars betting on the results of international football matches and offered bribes to various officials. In his role as vice minister of transport, Mr Nguyen Viet Tien was authorised to manage a huge amount of development capital and he allocated 70% of the capital to PMU18. Mar 22, 2006.