[authors: Georgie Farrant, Mini vandePol]
Baker & McKenzie has prepared a synopsis of the new FCPA Resource Guide (Guidance) issued by the US DOJ and SEC in order to assist our clients. The synopsis is intended to be a summary of the high points, including:
what the anti-bribery provisions of the FCPA cover;
what types of gifts, travel and entertainment may constitute “anything of value” under the FCPA;
who is a foreign official;
what constitutes facilitation payments;
how payments to third parties are treated;
how the principles of corporate liability apply under the FCPA (e.g. parent-subsidiary liability, successor liability); and
potential consequences of violations.
The FCPA's expansive jurisdictional reach beyond US territory means that Australian companies are often subject to its provisions. In many instances where our clients are not directly subject to the FCPA, they are nevertheless required to demonstrate their compliance with the FCPA because they have an existing or proposed relationship with an entity who is subject to the FCPA, for example, by reason of a merger or acquisition, a joint venture or a tender proposal.
The Guidance provides a comprehensive overview of the anti-bribery and accounting provisions of the FCPA, valuable insight into how the FCPA is applied and enforced by the DOJ and SEC and salient details on compliance program best practice through the use of hypothetical examples.
We trust that our synopsis of the Guidance will assist Australian companies, whether or not they are subject to the FCPA, to further understand how regulators think, what key factors the regulators consider and how Australian companies can position themselves to comply with multiple local and foreign laws in the anti-bribery and corruption space.
Baker & McKenzie have global expertise in this area. Should you wish to discuss the impact of the FCPA, the Guidance and/or any general questions in relation to anti-bribery and corruption compliance, please contact the Australian lead Partners, Mini vandePol or Georgie Farrant.