The FCPA's expansive jurisdiction

• Author: Robert W. Tarun
• Pages: 45-53

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 United States 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 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 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 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 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 com-

pany, business trust, unincorporated organization, or sole proprietorship

that has its principal place of business in the United States, or that is orga-

nized under the laws of a State of the United States or a territory, possession,

or commonwealth of the United States;6

45