Next up in our Arthurian week is the Holy Grail, which has fired the imagination of artists for millennia. What was the Holy Grail? According to Professor Dorsey Armstrong, Ph.D., in her Teaching Company lecture series entitled “King Arthur: History and Legend”, the Holy Grail has taken various forms over the years. For Chrétien de Troyes, it was a fancy serving dish; for Wolfram von Eschenbach, it is a magical stone; for Robert de Boron, it is the cup that Christ drank from at the Last Supper; for the comedy troupe Monty Python, it is a cartoon sketch that no one ever finds; and for the modern-day author Dan Brown, it is both a person, who is a descendant of Mary Magdalene, and a bloodline which leads to the Merovingian kings of France. In other words, it means many things to many people.
One of the articulated reasons for the creation of King Arthur’s Round Table was tied to the Holy Grail, since it was allegedly used at the Last Supper, it seems only natural that Arthur would seek it from his table as well. Indeed, in Robert de Boron’s account of Arthur, the wizard Merlin tells Arthur the Round Table was established to identify the one Knight, who was pure of heart, who could find the Holy Grail. Only after the great quest for and locating of the Holy Grail was achieved could Arthur’s other ambitions come to pass.
Another interesting twist on the Grail legend is that it was in Britain. Curiously it was first ‘discovered’ by some enterprising Monks in Glastonbury, England in the late 12th century. They just happened to come across a well that ‘bled’ water around the time of an annual pilgrimage. Going viral in the Middle Ages was tough but the Monks built upon their initial find by claiming that both King Arthur and his Queen Guinevere were also buried at their abbey. Do you believe any of the above? Are you on your own Grail Quest, however dreamy that quest might be?
I thought about the quest for the Holy Grail in the context of the problem with facilitation payments. I see them to be as quixotic as the quest for the Holy Grail.
The original version of the Foreign Corrupt Practices Act (FCPA), enacted in 1977, contained an exception for payments made to non-US officials who performed duties that were “essentially ministerial or clerical”. In 1988 Congress responded by amending the FCPA under the Omnibus Trade and Competitiveness Act to clarify the scope of the FCPA’s prohibitions on bribery, including the scope of permitted facilitation payments. An expanded definition of “routine governmental action” was included in the final version of the bill, reflecting the intent of Congress that the exceptions apply only to the performance of duties listed in the subcategories of the statute and actions of a similar nature. Congress also meant to make clear that “ordinarily and commonly performed actions”, with respect to permits or licenses, would not include those governmental approvals involving an exercise of discretion by a government official where the actions are the functional equivalent of “obtaining or retaining business for, or with, or directing business to, any person.” Section 15 U.S.C. § 78dd-3(f)(4)(A) of the FCPA contains an explicit exception to the bribery prohibition for any “facilitation or expediting payment to a foreign official, political party, or party official for the purpose of which is to expedite or to secure the performance of a routine governmental action by a foreign official, political party, or party official.” “Routine government action” does not include any decision by a public official to award new business or continue existing business with a particular party. The statute lists examples of what is considered a “routine governmental action” including:
- obtaining permits, licenses, or other official documents to qualify a person to do business in a country;
- processing government papers, such as visas or work orders;
- providing police protection, mail pick-up and delivery, or scheduling inspections associated with contract performance or transit of goods across country;
- providing phone service, power and water supply, loading and unloading cargo, or protecting perishable products from deterioration; and
- actions of a similar nature.
There is no monetary threshold for determining when a payment crosses the line between a facilitation payment and a bribe. The accounting provisions of the FCPA require that facilitation payments must be accurately reflected in an issuer’s books and records, even if the payment itself is permissible under the anti-bribery provisions of the law.
Facilitation payments carry legal risks even if they are permitted under the anti-bribery laws of a particular country. In the US, enforcement agencies have taken a narrow view of the exception and have successfully prosecuted FCPA violations stemming from payments that could arguably be considered permissible facilitation payments. Violations of the accounting and recordkeeping provisions of the FCPA are also more likely when a company makes facilitation payments. Countries are increasingly enforcing domestic bribery laws that prohibit such payments. Companies that allow facilitation payments face a slippery slope to educate their employees on the nuances of permissible payments in order to avoid prosecution for prohibited bribes. Additionally, facilitation payments are often the subject of follow-ons in more comprehensive FCPA enforcement action.
While the anti-bribery provisions of the FCPA permit facilitation payments, the accounting and recordkeeping provisions of the law nevertheless require companies making such payments to accurately record them in their books and records. Companies or individuals may be reluctant to properly record such payments, as it shows some semblance of impropriety and effectively creates a permanent record of a violation of local law. However, failure to properly record such expenditures may result in prosecution by the Securities and Exchange Commission (SEC) even if the underlying payments themselves are permissible.
Corporate approaches to facilitation payments may exceed the legitimate scope and applicability of the exception. Businesses still struggle with how to address the facilitation payments exception in their compliance policy and procedures, if the subject is covered at all. Businesses should be wary of allowing employees to decide on their own whether a particular payment is permissible. Unless such payments are barred completely or each payment is subject to pre-approval (which in many cases, such as passport control, would be unrealistic), there is always the risk that an employee, agent or other person whose actions may be attributed to the company will make a payment in reliance on the exception when in fact the exception does not apply. In addition, the temptation to improperly record otherwise permissible facilitation payments has been discussed above.
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