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Canada’s OECD Article 5 Moment

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Article 5 of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions states: “Investigation and prosecution of the bribery of a foreign public official shall be subject to the applicable rules and principles of each Party. They shall not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved.”

As highlighted here and prior posts here and here, OECD Convention signatory countries such as the United States and the United Kingdom have seemingly violated Article 5 in connection with certain enforcement actions, so it is not surprising that Canada (also a signatory country) is also having an Article 5 moment.

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FCPA Enforcement Actions Against Foreign Companies From OECD Convention Peer Countries

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As highlighted in this post, like prior years (see here and here) much of the largeness of 2018 FCPA enforcement resulted from corporate enforcement actions against foreign companies.

Specifically, of the 17 corporate enforcement actions in 2018, 9 (53%) were against foreign companies (based in many instances on mere listing of securities on U.S. markets and in a few instances on sparse allegations of a U.S. nexus in furtherance of a bribery scheme). Even more dramatic, of the net approximate $1 billion in FCPA settlement amounts from 2018 corporate enforcement actions, approximately 72% of this number was from enforcement actions against foreign companies.

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FCPA Flash Podcast – A Conversation With Philip Urofsky Regarding 2018 FCPA Trends And Developments

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The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Philip Urofsky (Shearman & Sterling and a former FCPA enforcement official at the DOJ). During the podcast, Urofsky elaborates on various issues such as jurisdiction over foreign actors and parent-subsidiary issues found in the firm’s always informative FCPA Digest. Urofsky also opines on what the FCPA enforcement landscape might look like if business organizations would put the government to its burden of proof in enforcement actions.

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The Rule Of Law Seems To Be A Major Factor In The General Lack Of Demand-Side Prosecutions

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The OECD recently released this report titled “Foreign Bribery Enforcement- What Happens to the Public Officials on the Receiving End?”

The report seems to lament the lack of prosecutions against “foreign officials” involved in alleged bribery schemes. However, as highlighted below, a major factor identified for the general lack of demand-side prosecutions seems to be rule of law issues including fundamental concepts such as the lack of evidence, statute of limitations and other issues.

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Identifying Chinese Companies For FCPA Violations Conflicts With The OECD Convention

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Perhaps it is neither here nor there 40 years later, but the FCPA’s legislative history is clear that Congress enacted the Foreign Corrupt Practices Act motivated primarily by selfish foreign policy reasons, not altruistic do-good reasons. (See here for the article “The Story of the FCPA”).

I was reminded of this when reading this recent DOJ press release announcing its China Initiative. Among the ten specifically identified components of the initiative is the following: “identify Foreign Corrupt Practices Act (FCPA) cases involving Chinese companies that compete with American businesses.”

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