The FCPA’s internal controls provision keeps evolving

Author: | Published: 26 Feb 2019

Baker McKenzie lawyers consider how foreign companies should approach the US’ famous Foreign Corrupt Practices Act when the goalposts keep moving

Imagine for a moment you were tasked with developing a defensible compliance programme to address your company's obligations to comply with the internal accounting controls provision of the US Foreign Corrupt Practices Act – Section 13(b)(2)(B) of the Exchange Act of 1934 (FCPA). You may start by examining the statute and looking to settled precedent. Your first observation would likely be the dearth of settled cases that have interpreted the internal accounting controls provisions, with limited guidance from courts on 'what the law is'. (Chief Justice John Marshall stated in Marbury v Madison: "It is emphatically the province and duty of the judicial department to say what the law is." 5 US [1 Cranch] [1803] 137, 177). You may then turn to enforcement actions and related commentary where you...