NCJ Number
227159
Journal
American Criminal Law Review Volume: 46 Issue: 2 Dated: Spring 2009 Pages: 671-700
Date Published
2009
Length
29 pages
Annotation
This article reviews the accounting and antibribery provisions of the Foreign Corrupt Practices Act (FCPA), which criminalizes the bribery of foreign officials by U.S. corporations and individuals pursuing business in other countries and also requires that companies with publicly traded stock meet specified standards for accounting practices, books and records, and internal controls.
Abstract
The first substantial requirement of the FCPA accounting provisions requires all issuers to “make and keep books, records, and accounts, which, in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the issuer.” The recordkeeping provisions are intended to prevent the failure to record illegal transactions; the falsification of records to conceal illegal transactions; and the creation of records that are quantitatively accurate, but fail to indicate qualitative aspects of the transaction. The accounting provisions also require issuers to create a system of internal accounting controls that provide reasonable assurance that transactions are properly authorized. In order to be criminally liable under either of the accounting provisions, an individual must “knowingly circumvent or knowingly fail to implement a system of internal accounting controls or knowingly falsify any book, record, or account.” The FCPA’s antibribery provisions criminalize bribery of a foreign official for the purpose of influencing any official act, induce any unlawful action, induce any action that would assist in obtaining or retaining business, or secure any improper advantage. Topics addressed in discussing the antibribery provisions are covered persons, elements of the offense, permissible payments and affirmative defenses, and enforcement. Other sections of the article address penalties, global anticorruption efforts, FCPA corporate compliance programs, and recent and anticipated developments. 191 footnotes