Chapter 2. The FCPA's Expansive Jurisdiction

• Author: Robert W. Tarun
• Pages: 1-13

CHAPTER 2

The FCPA’s Expansive Jurisdiction

I. ORIGINAL AND EXPANDED JURISDICTION

In enacting the Foreign Corrupt Practices Act in 1977, Congress originally limited

its jurisdictional scope to U.S. companies and individuals.1 The 1998 amendments

expanded the Act’s jurisdiction to include foreign individuals and corporations.

In particular, Congress amended the FCPA to implement the provisions of the

Convention on Combating Bribery of Foreign Officials in International Business

Transactions adopted by the Organization for Economic Cooperation and Devel-

opment (OECD) on December 17, 1997 (the OECD Convention). The OECD Con-

vention, which the U.S. Senate ratified on July 31, 1998, required signatories to

conform their laws to its terms. The United States did so with the International

Anti-Bribery and Fair Competition Act of 1998, which President William J. Clin-

ton signed on November 10, 1998.2 Among its provisions, the OECD Convention

called on signatories to make it a criminal offense for “any person” to bribe a for-

eign public official3 and required them “to take such measures as may be necessary

to establish its jurisdiction over the bribery of a foreign public official when the

offense is committed in whole or in part in its territory.”4 As a result, the FCPA had

to be amended in 1998 to conform to the 1997 OECD Convention by extending

its anti-bribery provisions to cover any bribery committed by any person (not just

issuers or domestic concerns) who commits an offense, in whole or in part, in U.S.

territory.

II. ENTITIES AND PERSONS COVERED

BY THE ANTI-BRIBERY PROVISIONS

The following persons and entities are now covered by the Act’s anti-bribery

provisions:

1. Issuers of securities—essentially, publicly traded companies: any corporation

(domestic or foreign) that has registered a class of securities with the Securi-

ties and Exchange Commission or is required to file reports with the Securi-

ties and Exchange Commission (SEC), for example, any corporation with its

stocks, bonds, or American depositary receipts traded on a U.S. securities

exchange;5

2. Domestic concerns—any individual who is a citizen, national, or resident

of the United States and any corporation, partnership, association, joint

stock company, business trust, unincorporated organization, or sole

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