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Report No. 258

I. United States41

41 The information on United States has been taken from the 'Country Review Report of the United States of America', Review by Sweden and the Former Yugoslav Republic of Macedonia for the review cycle 2010-2015, United Nations Office on Drugs and Crime; See also 'A Resource Guide to the U.S. Foreign Corrupt Practices Act', Criminal Division of the U.S. Department of Justice and the Enforcement Division of the U.S. Securities and Exchange Commission (2012), available at
http://www.justice.gov/sites/default/files/criminal-fraud/legacy/2015/01/16/guide.pdf,
last visited on 8th August, 2015.

3.10.1 The United States of America ("US") signed the UNCAC in 2003 and ratified it in 2006. The primary enforcement body for anti-corruption efforts in the US is the Department of Justice ("DOJ"), which checks the bribery of domestic public officials, foreign public officials and officials of public international organisations.

The Federal Bureau of Investigations ("FBI"), International Anticorruption Unit and the Securities and Exchange Commission ("SEC") assist the DOJ as necessary. The Federal Bribery Statute (18 US Code § 201) under the US Criminal Code and the Foreign Corrupt Practices Act ("FCPA") cover the relevant bribery offences.

3.10.2 In the context of clause (a) of Article 15 of the UNCAC, active bribery of national public officials is penalised under section 201(b)(1) of the Federal Bribery Statute under the US Code. All the elements of clause (a) of Article 15 are covered under the Federal Bribery Statute including "giving, offering or promising anything of value", "directly or indirectly with intention", "any other person or entity", and "to do or omit to do any act in violation of the lawful duty". Different States in the US have enacted their own laws prohibiting corrupt conduct as described under clause (a) of Article 15.

3.10.3 Passive bribery of national public officials as mentioned under clause (b) of Article 15 is penalised under various laws including 18 U.S.C. § 201(b)(2) &18 U.S.C. § 201(c) (bribery of public officials and witnesses), 18 U.S.C. § 1346 (definition of "scheme or artifice to defraud" another of the intangible right to honest services), 18 U.S.C. § 1951 (interference with Commerce by Threats or Violence - the Hobs Act), 18 U.S.C. § 1952 (Interstate of Foreign Travel in Aid of Racketeering Enterprises) of the US Code. The requisite elements under clause (b) of Article 15 are adequately covered under these laws. Different States have again enacted their own laws to implement the offence under paragraph 2.

3.10.4 Active bribery of foreign public officials and officials of public international organisations under paragraph 1 of Article 16 of the UNCAC is penalised under the FCPA, Title 15, US Code. Additionally, US federal law enforcement authorities, depending upon the facts and circumstances, can also resort to other federal laws to punish the conduct in question.

These laws include Title 18 of United States Code, sections 371 (conspiracy to commit an offence against the United States), 1341 (mail fraud), 1343 (wire fraud), 1952 (interstate and foreign travel or transportation in aid of racketeering enterprises), and 1956 (money laundering). Keeping a check on active bribery under the FCPA is a significant priority for the DOJ, the FBI and the US SEC. Prosecutions conducted so far under the FCPA involve both individuals and foreign and domestic companies.

In the context of foreign nationals, the FCPA applies to a particular transaction only in instances where a portion of the transaction involving misconduct occurs within the territorial jurisdiction of the United States. The FCPA also applies to companies listed on the US stock exchange, as well as the officers, directors, employees, and agents of a listed company, regardless of their nationality.

3.10.5 In the context of paragraph 2 of Article 16 of the UNCAC, the FCPA does not explicitly penalise passive bribery of foreign public officials and officials of public international organisations. This is due to certain policy and jurisdictional concerns. Nevertheless, the US can and has prosecuted foreign officials for money laundering and employees of public international organisations for corruption pursuant to the wire fraud statute.

3.10.6 In the context of Articles 4 and 42 of the UNCAC, US law allows for the exercise of jurisdiction over all acts that violate US law and are committed within US territory. In the context of the offence of active bribery, the FCPA specifically allows for the exercise of jurisdiction over actions committed by US nationals and businesses abroad. In addition, acts committed in furtherance of a bribe by foreign nationals and foreign businesses within the territory of the U.S. are also covered within the territorial jurisdiction of the US. Dual criminality is recognised and required for extraditing alleged offenders from the US.

The defences applicable to a charge of bribery as mentioned under the Securities and Exchange Act of 1934 include (1) the payment, gift, offer, or promise of anything of value that was made, was lawful under the written laws and regulations of the foreign official; (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, 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.



Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations - A Study and Proposed Amendments Back




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