The Fcpa's Expansive Jurisdiction

• Author: Robert W. Tarun
• Profession: Former Executive Assistant U.S. Attorney in Chicago
• Pages: 57-69

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 Con-

vention on Combating Bribery of Foreign Officials in International Business Trans-

actions adopted by the Organization for Economic Cooperation and Development

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

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. Clinton signed on Novem-

ber 10, 1998.2 Among its provisions, the OECD Convention called on signatories

to make it a criminal offense for “any person” to bribe a foreign 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 was amended in 1998 to conform to the

1997 OECD Convention by extending its antibribery 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 ANTIBRIBERY PROVISIONS

The following persons and entities are now covered by the FCPA’s antibribery

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 Securities

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 resi-

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

joint-stock company, business trust, unincorporated organization, or sole

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