The US Approach To Bribery Involving Foreign Officials

The United States is considering legislation to prosecute foreign officials that seek bribes from American businesses. Nicola Sharp sees echoes of the UK’s Bribery Act in the US proposal.

Foreign officials that request or accept bribes from Americans could face fines and prison sentences under legislation recently introduced in the US House of Representatives.

The Foreign Extortion Prevention Act (FEPA) would expand domestic anti-bribery statutes by targeting any officer or employee of a foreign government or public international organisation (or anyone deputising for them) who “corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value” in return for influencing governmental actions.

The bill would complement the Foreign Corrupt Practices Act (FCPA), which prevents US officials from accepting such bribes. Under FEPA, anyone found guilty could serve up to two years in prison, be fined up to three times the value of what constituted the bribe or both.

Co-sponsored by a bipartisan group of legislators, FEPA will make all extortion by foreign officials involving Americans abroad a criminal offence. 

As yet the bill is some way from becoming law. But it does show that the US is aware that there is an issue that it needs to tackle – and it is prepared to take steps to tackle it.

It is worth noting that the UK’s Bribery Act 2010 has a specific offence, under Section 6, of bribing a foreign official. As the UK’s Act is widely regarded as the most far-reaching piece of anti-bribery legislation in the world it is perhaps unsurprising if other jurisdictions – in this case the United States – wish to introduce similar measures.

Under the UK’s Bribery Act 2010 it is an offence, under Section 1, to offer, promise to pay or to pay a bribe. It is also an offence under Section 2 of the Act to request, accept or agree to accept a bribe. Under Section 6 of the Act, it is an offence to offer to or to provide bribes to foreign public officials, either directly or indirectly through third parties. The US’ latest proposal appears to be its way of addressing this issue.

The UK’s Bribery Act also has the added provision of offences whereby an organisation can be incriminated if it fails to prevent bribery: Section 7 of the Act states that a commercial organisation will be found guilty of a bribery offence if a person associated with the organisation has been found guilty of bribing another individual. The only defence that the organisation can have is that it had adequate procedures in place to protect against bribery and corruption. If the organisation cannot demonstrate that it has implemented such adequate policies it will be at risk of prosecution.

This article was also published on Lexology.com