5.3.3.1 The anti-bribery provisions

The FCPA prohibits persons and companies from paying bribes to non-US government officials to secure an "improper advantage," i.e. for the purpose of obtaining or retaining business.1 Companies also may not 'hide' behind local agents. The FCPA prohibits giving any person something of value "while knowing that all or a portion of such money or thing of value will be offered" in the form of a bribe.2

The FCPA anti-bribery provisions create a limited exception for small payments or gifts made to expedite or secure the performance of a 'routine governmental action'. The facilitating payments covered by this exception include payments made (i) to obtain documents necessary to qualify a person to do business in the country; (ii) to process government papers; (iii) to provide police protection, postal services, or necessary inspections; or (iv) to provide phone, utilities, cargo, or similar services.3

Furthermore, the FCPA provides two affirmative defences: where the payment or gift was lawful under the written laws of the foreign country, or where the payment or gift was a reasonable and a bona fide expenditure directly related to either the promotion, demonstration, or explanation of products or services, or the execution or performance of the contract.4 However, these exceptions are narrowly tailored, and it is risky to rely upon them.