In recent years, as the government has ramped up enforcement of the decades-old law, the U.S. Chamber of Commerce and other industry groups have pushed to amend and clarify parts of the statute. They argue in part that a lack of clarity about what qualifies as improper behavior has had a chilling effect on companies that have sought to expand into new international markets while maintaining compliance with the law.
Meanwhile, dozens of human rights and corporate governance groups say that the trade associations and individual companies that have sought alterations to the law are actually hoping to undermine its effectiveness.
To better understand the prevailing arguments on both sides, below are summaries of five proposed amendments to the FCPA that the Chamber’s Institute for Legal Reform issued in 2010 in a paper entitled “Restoring Balance.” Each is followed by a brief rebuttal summarized from a paper entitled “Busting Bribery,” published last year by the Open Society Foundation, which is backed in part by liberal philanthropist George Soros.
Click on the links above to read each policy paper in its entirety.
1) Compliance defense
Chamber: Currently, a company can be held accountable for the FCPA violations committed by individual employees or subsidiaries, even if the company has a robust FCPA compliance program. Adopting a “compliance defense” would protect a corporation from being punished for employees who commit crimes despite the firm’s diligent efforts to comply with the law.
Rebuttal: Federal officials already take into account a company’s compliance efforts throughout the enforcement process, and prosecutors must prove that violations were done knowingly or with corrupt intent. Creating a “compliance defense” would amount to eliminating criminal liability and inappropriately insulate companies from intentional wrong-doing.
2) Successor liability
Chamber: Under the current enforcement approach, companies can be held liable under the FCPA not only for their own actions but also the actions of other companies they have acquired or merged with — even if the corrupt acts predate the merger or acquisition. This should not be the case, particularly for historical violations, as companies might not be aware of wrongdoing even despite undertaking due diligence.
Rebuttal: Successor liability is rarely imposed, but it remains an important tool to prevent companies from escaping liability through restructuring. It also helps to ensure that companies conduct proper due diligence during the course of mergers and acquisitions.
Chamber: The current FCPA requires that individuals are liable for violations that are committed “willfully.” But corporations have no such protection, meaning they can face criminal penalties for violations even if the company (and its employees) did not know that its conduct was unlawful or even wrong. This also means companies potentially could face punishment for the actions of a subsidiary, even if it was unaware of misconduct. Therefore, a “willfulness” requirement should be added in regards to corporations.
Rebuttal: The Chamber’s interpretation of current law is inaccurate. Already, prosecutors seeking to establish corporate criminal liability must prove beyond a reasonable doubt that a company’s misconduct was done knowingly and with corrupt intent. Even without a “willfulness” requirement for corporations, no parent company could be successfully charged with criminal FCPA violations on behalf of a subsidiary if it had no knowledge of the misconduct.
4) Limited civil liability
Chamber: The FCPA does not definitively establish the scope of a company’s potential liability, leaving open the question of whether a corporation could face enforcement actions based on the misconduct of a foreign subsidiary. A company should not be held liable for a foreign subsidiary’s misdeeds if it did not direct, authorize or even know about the illegal payments.
Rebuttal: Eliminating the threat of civil liability risk would decrease incentives for a parent company to make sure its foreign subsidiaries comply with FCPA provisions. Congress intentionally chose to maintain such potential liability to guard against the temptation for parent companies to look the other way when it came to illicit payments by foreign subsidiaries.
5) Definition of “foreign official”
Chamber: The current FCPA definition of “foreign official” is ambiguous and ill defined. It allows federal officials to broadly interpret the definition to include employees of companies only partially owned by a foreign government, and can thus lead to companies facing bribery accusations for actions they did not believe to be illegal. The law should include a much clearer definition so that companies have a clearer understanding of who qualifies as a foreign official.
Rebuttal: The definition of “foreign official” should be defined broadly enough to allow for discretion, as various governments and the entities associated with them are organized in myriad different ways. Being too specific in the definition risks included officials who do not belong and excluding others who do. The issue is best left to “sound administrative management and judicial review.”