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A Demand Side Prohibition Belongs In The FCPA And Here Is How To Accomplish It


Prior posts here, here and here highlighted a bill recently introduced in the House of Representatives titled the Foreign Extortion Prevention Act which seeks to capture the so-called “demand side” of bribery by foreign officials given that the FCPA’s current anti-bribery provisions only capture the so-called “supply side” of bribery.

As noted in the prior posts, The Foreign Extortion Prevention Act seeks to prohibit such conduct – not through amending the FCPA – but through amending 18 USC 201 (the domestic bribery statute). As further highlighted in the prior posts, if enacted, The Foreign Extortion Prevention Act will lead to several areas of incongruous between “bribe” payor liability (what the FCPA captures) and “bribe” demander liability (what the Foreign Extortion Prevention Act seeks to capture).

Recently, I was contacted by the legislative assistant of a member of Congress who sought my views on the above topics. In preparing for the conference call, I drafted this document which highlights statutory language to amend the FCPA’s anti-bribery provisions to include the “demand” side of bribery.

The below post describes the statutory amendments and provides other general observations.

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Flashback To The Mid-1970’s Regarding The Demand Side


Previous posts here and here discussed the recently introduced Foreign Extortion Prevention Act which seeks to “prohibit a foreign official from demanding a bribe” by amending – not the FCPA – but rather 18 USC 201 (the so-called domestic bribery statute).

In introducing the bill, Representative John Curtis (R-UT), one of the co-sponsors, stated. “Currently, a business being extorted for a bribe can only say ‘I can’t pay you a bribe because it is illegal and I might get arrested.’ This long-overdue bill would enable them to add, ‘and so will you.”

This remark caused a mid-1970’s flashback because, as highlighted below, it largely mirrors the policy rationale of those who supported addressing the so-called foreign corporate payments through a disclosure approach and not the criminalization approach that ultimately became the Foreign Corrupt Practices Act.

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The Foreign Extortion Prevention Act:  A Response to Professor Koehler


Today’s post is from Baker & McKenzie attorneys Tom Firestone and Maria Piontkovska.

As the authors of one of the articles that contributed to the Foreign Extortion Prevention Act (“FEPA” or the “Act”), we would like to address some of the points made in Professor Koehler’s post on the FCPA Professor of August 5 entitled “Bill Seeks To Capture The Demand Side of Foreign Bribery Through Amendment to 18 USC 201.” (See here)

As an initial matter, we applaud Professor Koehler’s longstanding attention to this issue and understand that despite his criticisms of the text of the bill, Professor Koehler supports the concept of criminalizing the demand side of bribery.  He just believes that this should be accomplished through an amendment to the FCPA, rather than to 18 USC §201, as the Act would do and as we suggested in our original article.  In support of this argument, he raises several questions about FEPA.

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Bill Seeks To Capture The Demand Side Of Foreign Bribery Through Amendment To 18 USC 201

Capital Hill

The Foreign Corrupt Practices Act only captures one participant in a bribery scheme (the so-called supply side) in what is nearly always a two participant scheme. For more on this dynamic, see this recent FCPA Flash podcast episode with Tom Firestone (Baker & McKenzie) for how the demand side of bribery can be best addressed from a legal and policy perspective.

This bill titled “Foreign Extortion Prevention Act” recently introduced in the House by Representatives Sheila Jackson Lee (D- TX), John Curtis (R-UT), Tom Malinowski (D- NJ), and Richard Hudson (R-NC) seeks to “prohibit a foreign official from demanding a bribe.”

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FCPA Flash Podcast – A Conversation With Tom Firestone Regarding The Demand Side Of Bribery

FCPA Flash

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 Tom Firestone (Baker & McKenzie). During the podcast, Firestone talks about his recent article titled “Two to Tango Attacking the Demand Side of Bribery” and how the demand side of bribery can be best addressed from a legal and policy perspective.

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