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October 27, 2010

Restoring Balance: Proposed Amendments to the Foreign Corrupt Practices Act

This paper presents a series of amendments that would serve to improve the U.S. Foreign Corrupt Practices Act (“FCPA”). That statute was enacted by Congress and signed into law by President Carter in late 1977. Congress’s primary aim in enacting the FCPA was to prohibit U.S. companies and companies operating in the U.S. from paying bribes to foreign government officials, politicians, and political parties for the purpose of obtaining business opportunities abroad. Congress achieved this aim by making it a crime for U.S. citizens, domestic companies, and certain foreign companies and individuals to make corrupt payments, or offer anything of value, to foreign officials in return for business opportunity, broadly understood. These anti-bribery provisions have always been the centerpiece of the FCPA. But to promote the anti-bribery provisions, Congress further required that corporations with securities listed in the United States keep financial books and records that accurately reflect payments and maintain a system of internal accounting controls. The FCPA thus addressed foreign bribery by punishing its occurrence (the anti-bribery provisions) and providing for its detection and prevention (the books-and-records and internal controls provisions).

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