In terms of the FCPA, the U.S. Department of Justice takes the position that compliance programs should not be narrowly focused on the anti-bribery provisions of the FCPA. As is demonstrated in Attachment B to the non-prosecution agreement associated with the Department of Justice’s recent resolution with Parametric Technology (Shanghai) Software Co. Ltd. and Parametric Technology (Hong Kong) Ltd., calls for the development of a corporate policy “against violations of the FCPA and other applicable foreign law counterparts.”
Fortunately, the impact of the OECD Convention and, its counterparts, like the UN Convention, make, in large part, the contours of many of the anti-bribery laws very similar. This is certainly the case with, among others, the UK Bribery Act, Canada’s Corruption of Foreign Public Officials Act (CFPOA), and Brazil’s Clean Companies Act. Nonetheless, there can be differences such as whether facilitation payments may be permitted. More importantly, the provisions of the UK Bribery Act relative to private or commercial bribery also require attention.
Obviously, it is a daunting task to take into account all of the nuances of the foreign law counterparts of the FCPA. But aside from the position taken by the Department of Justice, the internal controls provisions of the FCPA dictate a similar result. The internal control provisions are not confined to foreign bribery or the foreign operations of an issuer, that is a publicly-held company listed in the United States or with ADRs listed in the United States. A company subject to the internal controls provisions must take steps to ensure that its operations do not violate any law that may ultimately bear on its financial statements.