International Bribery

In 1977, the United States adopted the Foreign Corrupt Practices Act (“FCPA”) to
combat, inter alia, the bribery of non-U.S. government officials by U.S. legal
entities, nationals, and their agents.  The FCPA responded to bribery scandals that
occurred abroad, some of which had serious foreign policy consequences.

The FCPA has two components: (1) U.S. persons and agents are subject to criminal
sanction for paying a commercial bribe to a defined group of foreign persons,
even though the relevant actions occurred abroad, and (2) public corporations are
required to disclose illegal payments in their filings with the U.S. Securities and
Exchange Commission ("SEC") in accordance with the FCPA's so-called "books and
records" provisions.

The latter violation is often easier to prove since there is no need to prove criminal intent
on the part of the corporation's employees or agents. Since 2001, the U.S. Department of
Justice ("DOJ") and the SEC have brought significantly more enforcement actions. 

Originally, the FCPA did not provide for a private causes of action.  This changed when
the FCPA was amended to comply with the Organization for Economic Cooperation and
Development (OECD).  As a result, there are similar prohibitions on bribery overseas.  
Nonetheless, since governments have limited resources with which to enforce the FCPA
(or their equivalents), private parties harmed by bribes paid by another person may have
an incentive to bring a private cause of action – often under the RICO Statute.