The Foreign Corrupt Practices Act is a piece of American legislation aimed at outlawing bribery of foreign officials. The Act applies to those with formal ties to the US, such as US nationals or businesses incorporated in the US, as well as foreign nationals and entities who are in the US at the time of the improper conduct. Individuals face between five to 20 years imprisonment for each violation. Corporations can be fined up to $2m per violation, and individuals up to $100,000.
The FCPA does not prohibit facilitation payments made to foreign officials for the purpose of causing them to perform routine governmental actions, such as issuing licenses or performing shipping inspections. The FCPA also does not prohibit reasonable, bona fide expenditures associated with a product or contract, or payments expressly permitted under the written laws of the foreign country.
Here is some guidance on the role the FCPA plays in helping businesses identify and mitigate the risk of bribery. The guidance has been taken from VinciWorks’ online anti-bribery training, which can be taken by staff working in any country.
Key differences between the FCPA and Bribery Act
Business to business bribery
The FCPA does not cover bribery on a private, business to business level, which the Bribery Act does criminalise. However, this sort of corruption is outlawed under other US legislation.
A brief guide to avoiding bribery
Gifts and donations are often a part of business, whether it is cultural norms or celebrating a completed negotiation. However, there are certain instances in which it is important to be vigilant of the circumstances behind donations as they may be attempts to bribe. here is a short guide to spotting potential red flags and avoiding bribery.
Charitable or political donations can be viewed as attempts of bribery if there is something unusual about the inherent qualities or timing of the donation. Bribery is not always a mutual arrangement and it may not be known to the donee if there is a bribe occurring. When receiving gifts and donations it is important to be vigilant as some types may be seen as improper.
When your organisation is using third parties, it is essential to complete your own due diligence equal to the risk faced from the said relationship. With businesses and partnerships around the world growing, it is essential to make sure all your relationships and third parties are legal and legitimate. VinciWorks’ guide to risk based third party due diligence will give you a clearer understanding of how to conduct a detailed and genuine risk assessment.
VinciWorks has created two contract clause templates that can easily be edited to suit your organisation’s contact persons, industry, and internal policies. These contract clauses allow businesses to withdraw from their contract with either a supplier or employee should they be found to be offering or accepting bribes. Here is some guidance on what should be included in these clauses, as well as a link to download them. These templates are also included in the VinciWorks’ anti-bribery resource page.
The Bribery Act 2010 defines bribery in a very broad way, namely as a gift or donation intended to “induce a person to perform improperly, a relevant function or activity”. When it comes to any compliance matter, it is important to install a culture whereby all staff feel comfortable raising any concerns they may have, be it regarding the actions of a client, a colleague or a member of the management team. VinciWorks has therefore created a bribery whistleblowing policy template that can easily be edited to suit your organisation and include the appropriate contact people.
Download policy template
Charitable donations are often used as a conduit for making bribes
While many large corporations strive to support worthy charitable causes across the world as well as the local community, it is important that staff are aware of the types of donations that are acceptable. It is also important that charitable donations made go directly to the charity and are not benefited by a political party or campaign. Charitable donations are often used to make bribes. Therefore, having a charitable and political donations policy in place will help ensure that donations to charities are made appropriately and don’t fall into the wrong hands.
VinciWorks’ charitable and political donations policy can be downloaded for free by clicking the button below. The template can easily be edited to suit your organisation’s industry and procedures. As well as creating a policy, it is also important staff undergo the appropriate anti-bribery training to allow them to identify suspicions of bribery.
Download policy template
How does your organisation collect and process all gifts and corporate hospitality that are given to your staff? How do you keep track of all the gifts given to and received by staff to current or potential clients?
Regulators in many industries including legal, pharmaceutical, construction, education and financial services demand that organisations collect, analyse and report on legal and compliance requirements to mitigate bribery risk. Further, professional services firms’ clients often expect their firms to have in place training and registers for Gifts and Hospitality.
Globally, organisations are bound by complex and ever-changing legal and compliance obligations. Without a structured and secure data collection system, organisations waste time and resources ensuring compliance and uncovering business intelligence. Omnitrack is VinciWorks’ solution to collecting, storing and managing data. It allows managers to be instantly notified of any gifts that are given or received, thereby enabling them to make an informed decision on next steps.
New anti-bribery training from VinciWorks
Anti-Bribery: Know Your Deal drops users into immersive scenarios to test their knowledge, understanding and ability to uncover risks of bribery in their working life.
Despite the UK Bribery Act having come into force in 2010, bribery is still a hugely problematic issue in corporate life. Billions of pounds of fines are levied every year and frequent reports hit the headlines of investigations and prosecutions from the US Department of Justice and UK Serious Fraud Office.
Bribery cases have ensnared some of the world’s largest companies, biggest sporting bodies and most powerful politicians. The propensity for some people to act corruptly might never change, but our approach to training and compliance can.
In Anti-Bribery: Know Your Deal, users face a set of realistic characters and scenarios from all walks of life, some of whom may be trying to offer, or ask for, a bribe. It is up to users to assess each situation and decide on the best course of action based on company procedures and the law.
Demo the course
Does your organisation have an up-to-date gifts and corporate hospitality policy in place? Are you able to easily register any gifts you receive or give? Having an up-to-date gifts and corporate hospitality policy in place will help you comply with your responsibilities under the Bribery Act and other anti-corruption legislation.
What should be included in a gifts and corporate hospitality policy?
The purpose of such a policy is to ensure that your organisation and its employees comply with the anti-bribery and corruption policy, bribery laws and best practice in combating corruption in all of the countries and business areas in which you operate. The policy should complement your organisation’s bribery and corruption policy. Here is some guidance on what the policy should include.