The Resource Guide to the U.S. Foreign Corrupt Practices Act has recently been revised for the first time by the U.S. Department of Justice and the Securities and Exchange Commission. The Resource Guide provides guidance on the DOJ’s and SEC’s enforcement policies and their interpretation of the FCPA: from how to define a “foreign official” to how to establish the hallmarks of an effective compliance program. The revisions bring the guidance more in line with FCPA statutory language, but it is important to keep in mind that the Resource Guide is still the DOJ’s and SEC’s interpretation of the law and of their enforcement powers. Although the changes are merely of a technical nature, we recommended reviewing the chapters on accounting provisions and on penalties, sanctions and remedies, as the new wording may provide a better understanding of the purpose of these provisions.
The Resource Guide provides guidance to individuals and companies seeking to comply with the Foreign Corrupt Practices Act (FCPA). But the guide, like the previous version, cannot “be relied upon to create any rights, substantive or procedural, that are enforceable at law”.
Most changes are of a technical nature, but the revision of Chapter 3 (The FCPA: Accounting Provisions) and Chapter 6 (FCPA Penalties, Sanctions and Remedies) now offer more clarity.
Chapter 3: The FCPA: Accounting Provisions (see p. 43)
Chapter 6: FCPA Penalties, Sanctions and Remedies (see p. 68)
The part on corporate compliance programmes in Chapter 5 (Guiding Principles of Enforcement) has not been revised. Perhaps the compliance expert that the DOJ is in the process of hiring will supplement the guidance on how the identification of compliance issues affects the government’s assessment of a programme’s effectiveness.
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