In terms of FCPA compliance, earlier this year violations of the FCPA’s anti-bribery provisions and the Travel Act for commercial bribery were charged in conjunction with international money laundering violation in United States v. Harder.1 A U.S. resident is alleged to have paid bribes for the benefit of a senior official of the European Bank for Reconstruction and Development (“EBRD”), a “public international organization” under the FCPA.2 The bribes were paid to the sister of the EBRD official for his influence on EBRD procurement decisions.
To date, relatively few prosecutions have been brought for corrupt payments to public international organizations as defined under the FCPA. Unfortunately, there is no simple and definitive formula under the FCPA. Instead, what constitutes a public international organization is dependent upon what entities have been so designated by executive order.3 This presents practical complications in designing an anti-bribery compliance program or drafting compliance language in agreements, particularly when trying to compile and update a list of public international organizations subject to the FCPA.
As a result, in designing a FCPA compliance program, consideration should be given to the statutory language employed by other OECD countries in defining public international organizations. In many instances, their definitions are more formulaic in nature and more suitable to providing guidance. In addition to their simplicity, formulaic definitions have the added benefit of generally being broader than the range of public international organizations subject to the FCPA.
For example, the UK Bribery Act defines a public international organization as an organization whose members are any of the following: “(a) countries or territories, (b) governments of countries or territories, (c) other public international organisations, (d) a mixture of any of the [foregoing].”4 Under Canada’s Corruption of Foreign Public Official’s Act, a public international organization is defined as being “formed by two or more states or governments, or by two or more such public international organizations.”5
Clear and simple guidance are among the foremost considerations in designing an effective anti-corruption compliance program. Turning to formulaic language used in other statutory schemes facilitates this objective. Given that global anti-corruption programs can no longer be limited to FCPA compliance, prudence also dictates using formulaic language that amply covers the range of public international organizations potentially subject to the prohibitions various anti-bribery legal regimes. It maximizes an entity’s protections.
1Indictment, United States v. Harder, No- 2-15-cr-00001-PD (E.D. Pa., Jan. 6, 2015).
215 U.S.C. § 78dd-2(h)(2)(B) (2015).
315 U.S.C. §§ 78dd-1(f)(1)(B); 78dd-2(h)(2)(B); 78dd-3(f)(2)(B) (2015).
4Bribery Act 2010, c. 23, § 6(6) (U.K.)
5Corruption of Foreign Public Official Act, R.S.C. 1998, c. 34, s. 2 (“foreign public officials”)(c).