USA Law and Practice Contributed by: Eric Bruce and Justin Simeone, Freshfields US LLP
1. Legal Framework 1.1 International Conventions
ciples feature important information about how pros - ecutors approach businesses that co-operate with federal investigations. The FCPA Resource Guide A joint publication by the US DOJ and the Securi - ties and Exchange Commission (SEC), this document provides an overview of the FCPA and the agencies’ approaches to key questions about the FCPA’s scope and application (eg, successor liability, parent–sub - sidiary relationships, and individual liability). In 2020, the DOJ issued the first significant revision of the FCPA Resource Guide since it was first published in 2012. Some of the key updates include the FCPA’s extraterritorial application, the factors US courts may consider in determining whether or not a non-US person is a “foreign official” for the purposes of the FCPA, and the importance of effective compliance programmes (eg, pre-M&A due diligence). 1.4 Recent Key Amendments to National Legislation There have not been significant legislative amend - ments to the key federal corruption statutes in 2025. 2. Bribery and Corruption Elements 2.1 Bribery The list below identifies the federal criminal statutes that are frequently used to prosecute bribery and cor - ruption. Individual states may have similar statutes. Bribery – Generally The FCPA is codified in 15 US Code (USC), Section 78dd-1 et seq. The statute prohibits “corruptly” giving “anything of value” to “foreign official[s]” or political party members for the purpose of: • influencing the foreign official’s acts or decisions; • inducing the foreign official to act contrary to their lawful duty; • securing “any improper advantage”; or • inducing the foreign official to influence a foreign government “in order to assist... in obtaining or retaining business for or with, or directing business to, any person”.
The United States has ratified the OECD Convention on Combating Bribery of Foreign Public Officials and the UN Convention Against Corruption. It has signed, but not ratified, the Council of Europe Criminal Law
Convention on Corruption. 1.2 National Legislation
The Foreign Corrupt Practices Act (FCPA) is the main federal legislation relating to foreign bribery. A variety of domestic statutes (see 2. Bribery and Corruption Elements ) govern domestic bribery and other corrup - tion involving state or federal government officials and employees. Most of the relevant federal statutes are found in Title 18 of the US Code. Each state has its own criminal laws prohibiting bribery or corruption- related offences. Some local or municipal govern - ments may have anti-corruption or ethics regulations. 1.3 Guidelines for the Interpretation and Enforcement of National Legislation The most important federal anti-corruption agencies actively issue and revise public guidance documents, which are important resources but are not legally bind - ing. The two most relevant sources of guidance are detailed below. In addition, new enforcement approaches may be announced on an ad hoc basis through memo - randa, public statements by agency officials, or other publications. The Justice Manual This document sets out DOJ policy and practice regarding how to charge and prosecute violations of most federal criminal statutes. The Justice Manual is a useful reference for understanding the DOJ’s inter - pretation of the law and the factors it considers when making decisions regarding, for example, whether to file charges, what penalties to seek, and how to treat co-operating witnesses and defendants. The Justice Manual includes a section on the DOJ’s Principles of Federal Prosecution of Business Organ - izations, which lays out the agency’s approach to investigating and prosecuting corporations. The Prin -
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