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Complying with the U.S. Foreign Corrupt Practices Act can be a major headache for U.S. businesses operating on an international basis.
That's why we welcome a new guidance regarding the FCPA issued this month. As we report on page 3, “A Resource Guide to the U.S. Foreign Corrupt Practices Act,” pulls together information about the law that was previously scattered in a variety of places.
Anything that makes complying with the FCPA easier is welcome. The law imposes criminal and civil penalties for a variety of offenses — including foreign bribery, inaccurate financial records and inadequate controls — that potentially are expensive and embarrassing for defendants.
But the guidance doesn't provide new insight on how the Department of Justice and Securities and Exchange Commission — both of which are charged with enforcing the law — approach their tasks. That's a shortcoming, particularly because Congress could attempt to reform the law.
But having what had been a diffuse archive of information in one place — in this case a 120-page document — is definitely a plus for U.S. companies with international operations. Without such a central repository of information, companies had to gather information about the law through counsel, a necessary but often costly exercise.
One of the more valuable aspects of the guidance is that it provides hypothetical situations and case studies, without naming the companies involved. Hypothetical and real-life scenarios deal with such issues as gifts, travel and entertainment of foreign officials. These are areas of FCPA compliance with which U.S. companies have struggled in the past.
The guidance underscores the necessity of having strong corporate compliance programs in place. While that doesn't act as an absolute shield against FCPA actions, having a comprehensive compliance program in place can be a plus when obtaining insurance to respond to FCPA exposures.
The guidance isn't perfect, but it's a valuable tool to deal with what can be a very expensive exposure that can only grow as more U.S. companies turn to overseas opportunities as part of their strategies for growth.