International Section of the New York State Bar Association (NYSBA) has published a good article on FCPA in its 2009 Spring issue (subscription required), with its supplemental overview, of International Law Practicum. Perspectives of many experts on the contemporary effects of FCPA were introduced. Not only domestic DOJ actions, but also a frank view of British policy with respect to anti-bribery enforcement. In summary, the article echoes the recent trend of increased FCPA enforcement by DOJ and SEC. In light of very few cases, there is very little authoritative guidance, other than that of DOJ, which tends to construe the statute broadly. Panel of legal practitioners provides insight of what can private companies do in order to not run afoul with the statute, which includes views of how one can interpret an inappropriate payments and contracts or relationships with the government officials. Panelists also discussed the issue of knowledge, which is a constructive (as opposed to actual) and deals with question of probabilities.
One of the panelist neatly broke the FCPA focus into 6 elements, which focus on the “(i) payment, offer, or promise of (ii) anything of value to (iii) certain – people – who include not just foreign officials but also candidates for political office and others – (iv) with corrupt intent (v) for the purpose of influencing that official to act or not to act or to influence somebody else (vi) to assist in obtaining or retaining business.”
An excellent supplement material to NYSBA’s FCPA perspective is the April 7, 2009 PBS Frontline edition of Black Money, which consists of set of interviews of U.S., British, Swiss, and Saudi officials in line with the rhetoric of the NYSBA’s publication.
