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A Reminder Why Congress Chose To Exempt Facilitating Payments From The Reach Of The FCPA’s Anti-Bribery Provisions

reminder

Recently, the U.S. State Department released 2020 “Investment Climate Statements.”  The annual reports cover over 170 foreign markets and are prepared by “economic officers at U.S. embassies and diplomatic missions” to help U.S. companies make informed business decisions.

Corruption is prominently mentioned in most country investment climate statements.

However, this “2020 Mongolia Investment Climate Statement” particularly caught my eye – not because Mongolia is a prominent market for U.S. businesses – but rather because the statement provides a nice reminder why Congress chose to exempt facilitation payments from the reach of the FCPA’s anti-bribery provisions.

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Friday Roundup

Roundup

More false information, scrutiny alert, points of contact, and ineffective communication. It’s all here in the Friday roundup.

More False Information

More false information from the FCPA Blog in this post which asserts that “anyone relying on the [FCPA’s facilitation] exception should be prepared to defend it — that is, the burden of proof is on the one asserting the exception as a defense to an FCPA violation.”

This is a false statement.

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FCPA Flash Podcast – A Conversation With James Noe Regarding FCPA Issues In The Oil And Gas Industry

Podcast Logo

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 James Noe (special counsel with Jones Walker LLP who previously served in various in-house counsel and executive roles with several oil and gas companies). During the podcast, Noe discusses: the easiest and most difficult aspects of FCPA compliance in the oil and gas industry; the extent of facilitating payments in the industry; whether oil and gas companies are too risk averse when it comes to FCPA issues; and civil actions by industry participants when business is lost because of a refusal to make bribe payments.

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Friday Roundup

Roundup

Transparency, hilarious, fact-checking, little sense, just saying, and for the reading and listening stack. It’s all here in the Friday roundup.

Transparency

The Project on Government Oversight (POGO) recently this document titled “Baker’s Dozen: 13 Policy Areas That Require Congressional Action” noting that a “lack of transparency around enforcement of the FCPA leaves lingering questions about its utility.” POGO then proposes:

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A Few Observations On The Anticorruption Chapter Of The United States – Mexico – Canada Agreement

USMCA

Recently, the Office of the U.S. Trade Representative released the text of the United States – Mexico – Canada agreement (USMCA). The extensive agreement has a specific chapter (chapter 27) titled anticorruption and this post offers a few observations regarding the agreement compared to the Foreign Corrupt Practices Act specifically as it relates to “foreign official” issues and the express facilitation payments exception.

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