US Attempts to Clarify Bribery Law

As written in the November 15, Wall Street Journal, “…….bits of wisdom were revealed Wednesday in hotly anticipated guidance from the U.S. government about which practices might put corporations in violation of a far-reaching antibribery law. [The aforementioned law is the Foreign Corrupt Practices Act, or “FCPA”]

The 130-page document is the most comprehensive effort by the U.S. Justice Department and the Securities and Exchange Commission to respond to complaints from companies that ambiguity in the Foreign Corrupt Practices Act has forced them to abandon business in high-risk countries and spend millions of dollars investigating themselves.

Authorities dusted off the Watergate-era [FCPA] law—which bars bribery of foreign officials—last decade and have since used the statute to extract billions of dollars in penalties from dozens of major corporations. “

I am happy to see the DOJ clarifying their expectations, but it’s not as black and white as the WSJ article may lead you to believe. I lived through it first hand.

As a former Chief Compliance Officer and the executive who managed a DOJ / SEC-led FCPA investigation (2010 Gun Sting case), I have yet to find quality guidance that would help companies truly operationalize the law.

Furthermore, the “who you bribe” no longer matters, thanks to the UK Bribery Act, which has now become the global standard. Bribery laws encompass not just government officials but commercial transaction partners as well, making the determination about who can or cannot “receive a cup of coffee” a painful exercise.

Operationalizing such levels of control over international business, domestic business or any form of personal interaction becomes a nightmare. And, in my opinion, the spirit of the bribery laws gets lost in the fear of violating the minutia. The outcome is a less competitive business with numerous administrative barriers established to meet an unclear expectation.

Recently, Orchid Advisors was launched to fill the needed void between regulators and lawyers. Our specialty is operationalizing compliance with pertinent regulations such as the Foreign Corrupt Practices Act (FCPA), the UK Bribery Act and others.

If anyone chooses to engage in this conversation, seeks advice or just wants to ask a question, please do not hesitate to reach out.

Unfortunately, there is a very fine line that separates worry-free international business and the activities which keep you up at night. And we are here to help.