APPENDIX A - EXTRACTS FROM U.S. FCPA 1977
Anti-Bribery and Books & Records Provisions
of The Foreign Corrupt Practices Act
UNITED STATES CODE TITLE 15. COMMERCE
AND TRADE
CHAPTER 2B--SECURITIES EXCHANGES
§ 78dd-2. Prohibited foreign trade
practices by domestic concerns
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(c) Affirmative defenses
It shall be an affirmative defense to actions
under subsection (a) or (i) of this section that — …
. . . (2) the payment, gift, offer, or promise
of anything of value that was made, was a reasonable and bona
fide expenditure, such as travel and lodging expenses, incurred
by or on behalf of a foreign official, party, party official,
or candidate and was directly related to--
(A) the promotion, demonstration, or explanation
of products or services; or
(B) the execution or performance of a contract
with a foreign government or agency thereof.
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(e) Guidelines by Attorney General
Not later than 6 months after August 23,
1988, the Attorney General, after consultation with the Securities
and Exchange Commission, the Secretary of Commerce, the United
States Trade Representative, the Secretary of State, and the Secretary
of the Treasury, and after obtaining the views of all interested
persons through public notice and comment procedures, shall determine
to what extent compliance with this section would be enhanced
and the business community would be assisted by further clarification
of the preceding provisions of this section and may, based on
such determination and to the extent necessary and appropriate,
issue--
(1) guidelines describing specific types
of conduct, associated with common types of export sales arrangements
and business contracts, which for purposes of the Department of
Justice's present enforcement policy, the Attorney General determines
would be in conformance with the preceding provisions of this
section; and
(2) general precautionary procedures which
domestic concerns may use on a voluntary basis to conform their
conduct to the Department of Justice's present enforcement policy
regarding the preceding provisions of this section.
The Attorney General shall issue the guidelines
and procedures referred to in the preceding sentence in accordance
with the provisions of subchapter II of chapter 5 of Title
5 and those guidelines and procedures shall be subject to
the provisions of chapter 7 of that title.
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(f) Opinions of Attorney General (1) The
Attorney General, after consultation with appropriate departments
and agencies of the United States and after obtaining the views
of all interested persons through public notice and comment procedures,
shall establish a procedure to provide responses to specific inquiries
by domestic concerns concerning conformance of their conduct with
the Department of Justice's present enforcement policy regarding
the preceding provisions of this section. The Attorney General
shall, within 30 days after receiving such a request, issue
an opinion in response to that request. The opinion shall state
whether or not certain specified prospective conduct would, for
purposes of the Department of Justice's present enforcement policy,
violate the preceding provisions of this section. Additional requests
for opinions may be filed with the Attorney General regarding
other specified prospective conduct that is beyond the scope of
conduct specified in previous requests. In any action brought
under the applicable provisions of this section, there shall be
a rebuttable presumption that conduct, which is specified in a
request by a domestic concern and for which the Attorney General
has issued an opinion that such conduct is in conformity with
the Department of Justice's present enforcement policy, is in
compliance with the preceding provisions of this section. Such
a presumption may be rebutted by a preponderance of the evidence.
In considering the presumption for purposes of this paragraph,
a court shall weigh all relevant factors, including but not limited
to whether the information submitted to the Attorney General was
accurate and complete and whether it was within the scope of the
conduct specified in any request received by the Attorney General.
The Attorney General shall establish the procedure required by
this paragraph in accordance with the provisions of subchapter
II of chapter 5 of Title 5 and that procedure shall
be subject to the provisions of chapter 7 of that title.
(2) Any document or other material which
is provided to, received by, or prepared in the Department of
Justice or any other department or agency of the United States
in connection with a request by a domestic concern under the procedure
established under paragraph (1), shall be exempt from disclosure
under section 552 of Title 5 and shall not, except with
the consent of the domestic concern, by made publicly available,
regardless of whether the Attorney General response to such a
request or the domestic concern withdraws such request before
receiving a response.
(3) Any domestic concern who has made a
request to the Attorney General under paragraph (1) may withdraw
such request prior to the time the Attorney General issues an
opinion in response to such request. Any request so withdrawn
shall have no force or effect.
(4) The Attorney General shall, to the maximum
extent practicable, provide timely guidance concerning the Department
of Justice's present enforcement policy with respect to the preceding
provisions of this section to potential exporters and small businesses
that are unable to obtain specialized counsel on issues pertaining
to such provisions. Such guidance shall be limited to responses
to requests under paragraph (1) concerning conformity of specified
prospective conduct with the Department of Justice's present enforcement
policy regarding the preceding provisions of this section and
general explanations of compliance responsibilities and of potential
liabilities under the preceding provisions of this section.
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