Regulators across the globe are adopting more aggressive measures to tackle corruption in their territories. However, cracking down on corrupt practices is no longer a purely domestic concern, and many businesses now find themselves subject to multiple, and sometimes competing, anticorruption laws. In this alert, our lawyers explain the reach of the U.S. Foreign Corrupt Practices Act (FCPA), UK Bribery Act, and French, German and Greek criminal codes.
This is the first alert in our series, From the FCPA to the UK Bribery Act – Your key questions about global anticorruption laws answered. Over the next few weeks, members of our global regulatory & investigations team will answer your most important questions about anticorruption laws in the U.S., UK, France, Germany and Greece. Next up, we will explore what the FCPA, UK Bribery Act, and French, German and Greek criminal codes mean for your dealings with third parties.
Am I subject to the FCPA?
- The FCPA anti-bribery provisions broadly apply to the following three categories of entities and individuals:
- “issuers” and their officers, directors, employees, agents, and stockholders (15 USC 78dd-1);
- “domestic concerns” and their officers, directors, employees, agents, and stockholders (15 USC 78dd-2); and
- certain other persons and entities acting under the territorial jurisdiction of the United States (15 USC 78dd-3).
- In “issuer” is generally defined as any company that issues stock on a securities exchange, or in the over-the-counter market, in the United States and is required to file reports with the U.S. Securities and Exchange Commission (15 USC 78l; 15 USC 78c(a)(8); 15 USC 78o(d)).
- A “domestic concern” is generally defined as: “(A) any individual who is a citizen, national, or resident of the United States; and (B) any corporation, partnership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship that has its principal place of business in the United States, or which is organized under the laws of a State of the United States or a territory, possession, or commonwealth of the United States” (15 USC 78dd-2(h)(1)).
- Finally, the United States asserts broad territorial jurisdiction over persons and entities that do not qualify as “issuers” or “domestic concerns” where the conduct of such persons or entities directly or indirectly furthers a corrupt payment in violation of the FCPA. The Department of Justice takes an expansive view of its territorial jurisdiction. Prosecutions have included both foreign and domestic defendants for violating the FCPA criminal anti-bribery provisions, whether the conduct occurred in the United States or abroad, provided that a sufficient link to the United States exists to confer jurisdiction.
Am I subject to the UK Bribery Act?
You are subject to the UK Bribery Act if:
- As regards the offense of giving a bribe, being bribed, or bribing a foreign public official:
- You are a person or corporate or unincorporated body located anywhere in the world and you commit any act or omission in England and Wales, Scotland or Northern Ireland which forms part of such offense.
- You commit any act or omission outside the United Kingdom which would form part of such an offense if done or made in the United Kingdom, and have a close connection with the United Kingdom, meaning you are:
— A British citizen;
— A British overseas territories citizen;
— A British national (overseas);
— A British overseas citizen;
— A person who under the British Nationality Act 1981 was a British subject;
— A British protected person within the meaning of that Act;
— An individual ordinarily resident in the United Kingdom;
— A body incorporated under the law of any part of the United Kingdom; or
— A Scottish partnership.
- As regards the offense of failing to prevent bribery by a commercial organization, you are subject to the UK Bribery Act if you are:
- A body incorporated or partnership formed in the United Kingdom and carrying on a business anywhere; or
- A body incorporated or partnership formed anywhere and carrying on a business, or part of a business, in the United Kingdom.