ARGENTINA AND THE U.S.: AN OVERVIEW OF ANTI-CORRUPTION LEGISLATION

• Jurisdiction: Derecho Internacional

International Mining and Oil & Gas Law, Development and Investment
(Apr 2009)
CHAPTER 22B
ARGENTINA AND THE U.S.: AN OVERVIEW OF ANTI-CORRUPTION LEGISLATION
Luis Derrota
Anadarko Petroleum
Texas

Luis H. Derrota currently serves as Associate General Counsel - International to Anadarko Petroleum Corporation. Prior to joining Anadarko, he served as Vice President, Chief Compliance Officer and Deputy General Counsel to Baker Hughes Incorporated. Mr. Derrota has devoted all of his practicing years to international corporate law while serving as in-house counsel to various corporations in the computer, engineering and energy industries. His practice has been primarily transactional and has included asset/stock acquisitions and divestitures, project financing and creation of joint ventures. He has extensive experience in such areas as the Foreign Corrupt Practices Act, export controls, the anti-boycott laws, legal compliance issues, international arbitration, securities matters, the corporate secretary function and the legal budgetary process. Mr. Derrota obtained his B.A., cum laude, from Loyola Marymount University in 1974. He received his J.D. in 1978 from Georgetown University Law Center in Washington, D.C.

TOPICS TO BE COVERED

• Overview of the U.S. Foreign Corrupt Practices Act ("FCPA")

• Overview of Argentina's Anticorruption Legislation

• Effective Prevention Steps

• Practical Risk Assessment Steps

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Overview of FCPA

• FCPA enacted in 1977

• U.S. has signed and ratified international anti-corruption conventions:

• Inter-American Convention against Corruption-1996 ("OAS Convention")

• OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions-1997 ("OECD Convention")

• United Nations Convention against Business Corruption ("UN Convention")-2003

• U.S. has signed conventions with reservations

• International Conventions-significant U.S. reservations:

• No private right of action as envisioned by UN Convention

• No application of the illicit enrichment provision of the OAS Convention

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• U.S. Enforcement Agencies:

• U.S. Department of Justice-enforcement of anti-bribery provisions

• U.S. Securities and Exchange Commission-enforcement of books and records provisions

• What is it? U.S. federal law which imposes criminal penalties:

• on "covered persons"

• making/offering to pay money or anything of value

• directly or indirectly to "foreign official"

• for corrupt purposes, i.e., to obtain or retain business or for the purpose of securing an improperadvantage¹

• It is unlawful to make payment to any person "knowing" that all or portion will be paid to a "foreign official" for corrupt purpose

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• "Covered Persons"

• Issuer-any company whose stock is listed or traded in U.S.

• Domestic concern-U.S. citizen, national, resident, or a U.S. company or a company w/its principal place of business in the U.S. or officers, directors, stockholders, employees and agents of such an entity

• Any person, if acting in U.S. territory

• Any U.S. national or U.S. company acting outside the U.S. - use of interstate commerce not a requirement

• "Foreign Officials" by any other name:

• Any officer or employee of a foreign government, department, entity or instrumentality of such government, e.g., employees of state-owned national oil companies

• Uncompensated honorary officials-if such officials have actual influence in award of business

• Any officer or employee of a public international organization, e.g. Inter-American Development Bank

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• "Corrupt Purpose" under the FCPA

• Not defined in the statute

• Defined by...