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Corporate Social Responsibility (IVOR nr. 77) 2010/5.3.3.0
5.3.3.0 Introductie
Mr. T.E. Lambooy, datum 17-11-2010
- Datum
17-11-2010
- Auteur
Mr. T.E. Lambooy
- JCDI
JCDI:ADS370638:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
The FCPA was lastly amended in 1998; it is part of the US Securities Exchange Act 1934, as amended. FCPA of 1977: Pub. L. No. 95-213, 91 Stat 1494; codified as amended at 15 U.S.C. §§78dd-1 to 3, 2000. Available at: http://www.justice.gov/criminal/fraud/fcpa/, accessed on 3 August 2010. See further: L.A. Low, 'Enforcement of the US Foreign Corrupt Practices Act: Extraterritorial Reach and The Effects of International Standards', Miller & Chevalier, Steptoe & Johnson LLP, Washington D.C., at: http://www.steptoe.com/assets/attachments/ 2600.pdf>1, accessed on 19 March 2009.
Section 15U.S.C.§78dd-3 FCPA prohibits foreign trade practices by persons other than issuers or domestic concerns as follows: 'It shall be unlawful for any person other than an issuer that is subject to section 30A of the Securities Exchange Act of 1934 or a domestic concern, as defined in section 104 of this Act, or for any officer, director, employee, or agent of such person or any stockholder thereof acting on behalf of such person, while in the territory of the United States, corruptly to make use of the mails or any means or instrumentality of interstate commerce or to do any other act in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to any foreign official [...]; (2) any foreign political party or official thereof or any candidate for foreign political office [...]'. See Low, supra note 67.
In the US, the Department of Justice and the SEC are spearheading the fight against global corruption. The principal weapon in their arsenal is the FCPA. The FCPA was passed in 1977 in response to abuses that came to light as a result of a SEC voluntary disclosure programme in mid-1970, through which it was revealed that large US companies had paid bribes to government officials to obtain business in both developed and developing countries.1 The FCPA fundamentally stands for the proposition that notwithstanding local customs or business pressures to the contrary US businesses and persons should not bribe foreign officials or foreign political parties. The FCPA's provisions include both anti-bribery provisions and accounting provisions, which will be addressed in sections 5.3.3.1 and 5.3.3.2. Their extraterritorial reach is very wide. Also non-US companies and persons can fall within the scope of application of the FCPA.2 In the last decade, there have been increasing numbers ofprosecutions of and investigations into European companies concerning FCPA violations. The penalties are severe and the reputation risks associated with prosecution are great; the environment also becomes increasingly challenging for individual officers and directors (see sections 5.3.3.3 and 5.3.3.4 infra).