Support the Private Sector in its Anti-Corruption Efforts

The United States will continue to encourage the private sector in its efforts to detect and prevent corruption, including by providing anti-corruption information and resources through outreach domestically and abroad at conferences and on agency websites, guidance on the importance of effective compliance programmes, and a mechanism for obtaining specific guidance on whether prospective conduct violates the Foreign Corrupt Practices Act (FCPA).

Completion Status:
Fulfilled

Commitment filtering:

Specific:yes
 

The wording of the commitment is vague and requires considerable interpretation. The commitment can be divided into four parts:

a)     Providing anti-corruption information and resources through outreach domestically and abroad at conferences

The US government clarified that it is focusing on multilateral fora connected to the private sector, such as Asia-Pacific Economic Cooperation (APEC), the OECD, the G20 and the Summit for Democracy. However, this is also the continuation of existing work, without clear action plans for how to advance these activities. This part of the commitment is therefore not specific.

b)     Providing anti-corruption information on agency websites

The Department of Justice (DoJ) maintains a website dedicated to the Foreign Corrupt Practices Act (FCPA), with a special section on Corporate Enforcement Policy. The website provides relevant legislative history, an FCPA Resource Guide and selected documents from FCPA-related prosecutions and resolutions since 1977, including charging documents, plea agreements, deferred prosecution agreements, non-prosecution agreements, press releases, and other relevant pleadings and court decisions.[1] In addition, the Department of State webpage provides information about the National Action Plan on Responsible Business Conduct developed in 2016, which is currently being updated (the first and most recent national action plan is from 2016).[2] However, the website was in place before the commitment was made. Therefore, this part of the commitment is the continuation of existing work and cannot be considered specific.

c)     Providing guidance on the importance of effective compliance programmes

The Department of Commerce website contains information and guidance on creating an Export Compliance Programme in English and Spanish. [3],[4] Besides several resources on compliance and enforcement, the Bureau of Industry and Security offers training on export control policies, regulations and practices, and in-depth courses on specific topics of relevance.[5] In 2017 the Department of Commerce also published Export Compliance Guidelines.[6] However, the website and guidance were in place before the commitment was made. This part of the commitment is therefore the continuation of existing work, without a clear action plan for how the Department of Commerce aims to advance these activities, and cannot be considered specific.

d)     Providing a mechanism for obtaining specific guidance on whether prospective conduct violates the Foreign Corrupt Practices Act (FCPA).

Further input from the US government indicated that this refers to publishing “A Resource Guide to the US Foreign Corrupt Practices Act”.

Only the resource guide in part d) of the commitment refers to a specific advancement of the government’s work to foster business integrity, by providing specific guidance on whether prospective conduct violates the FCPA.

[1] US Department of Justice, Foreign Corrupt Practices Act, https://www.justice.gov/criminal-fraud/foreign-corrupt-practices-act

[2] US Department of State (2022), National Action Plan on Responsible Business Conduct: Notice of Opportunity to Submit Written Comments, https://www.federalregister.gov/documents/2022/02/28/2022-04178/national-action-plan-on-responsible-business-conduct-notice-of-opportunity-to-submit-written

[3] US Department of Commerce, Bureau of Industry and Security, Export Compliance Program (ECP), https://www.bis.doc.gov/index.php/2011-09-13-13-22-03/24-compliance-a-training/export-management-a-compliance/50-export-management-a-compliance-program

[4] US Department of Commerce. Bureau of Industry and Security, Compliance, BIS Releases Export Compliance Guidelines in Spanish, https://www.bis.doc.gov/index.php/licensing/24-compliance-a-training/export-management-a-compliance

[5] US Department of Commerce, Bureau of Industry and Security, Compliance and Training, https://www.bis.doc.gov/index.php/compliance-a-training

[6] US Department of Commerce, Bureau of Industry and Security, Export Compliance Guidelines, https://www.bis.doc.gov/index.php/documents/pdfs/1641-ecp/file

Measurable:yes

The wording of the commitment is vague and requires considerable interpretation. For this monitoring report, the commitment has been limited to the publication of “A Resource Guide to the US Foreign Corrupt Practices Act” – the part of the commitment that is measurable.



Last updated: 31 December 2022
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Evaluation:

As previously mentioned, the wording of this commitment is vague and requires significant interpretation. Only the part on the resource guide refers to a particular advancement of the government’s work to foster business integrity, by providing specific guidance on whether prospective conduct violates the Foreign Corrupt Practices Act (FCPA). For that reason, the monitoring will focus only on whether a resource guide to the FCPA has been developed and published.

In 2020, the Department of Justice and the Securities and Exchange Commission released an updated version of “A Resource Guide to the US Foreign Corrupt Practices Act”.[1] The guide aims to provide information regarding the FCPA for individuals and businesses of all types and sizes – from small businesses transacting abroad for the first time to multinational corporations with subsidiaries worldwide. Topics addressed in the guide include:

  • who and what is covered by the FCPA’s anti-bribery and accounting provisions
  • definitions of concepts such as “corruptly”, “wilfully”, “anything of value” and “foreign official”
  • the jurisdictional reach of the FCPA
  • types of proper and improper payments
  • application of successor liability in the mergers and acquisitions context
  • the hallmarks of an effective corporate compliance programme
  • different types of civil and criminal resolutions available in the FCPA context.

This is an updated version of the guide released in November 2012.[2] Therefore, we consider this commitment as fulfilled.

 

Recommendations
  • Formulate the full commitment in specific and measurable terms, including concrete new promises for business integrity support, which can be assessed in terms of fulfilment.
  • Make the commitment more ambitious by going beyond continuations of previous work, in order to advance anti-corruption efforts in the area of business integrity.

[1] Criminal Division of the Department of Justice and the Enforcement Division of the Securities and Exchange Commission (2020), A Resource Guide to the U.S. Foreign Corrupt Practices Act, https://www.justice.gov/criminal-fraud/file/1292051/download

[2] US Department of Justice, FCPA Resource Guide, https://www.justice.gov/criminal-fraud/fcpa-resource-guide

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