[Congressional Record Volume 144, Number 151 (Wednesday, October 21, 1998)]
[Senate]
[Pages S12973-S12974]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
INTERNATIONAL ANTI-BRIBERY ACT OF 1998
Mr. DeWINE. Mr. President, I ask the Chair lay before the Senate a
message from the House of Representatives on the bill (S. 2375) to
amend the Securities Exchange Act of 1934 and the Foreign Corrupt
Practices Act of 1977, to strengthen prohibitions on international
bribery and other corrupt practices, and for other purposes.
The PRESIDING OFFICER laid before the Senate the following message
from the House of Representatives:
Resolved, That the House disagree to the Senate amendments
numbered 2 through 6 of the House amendment to the bill (S.
2375) entitled ``An Act to amend the Securities Exchange Act
of 1934 and the Foreign Corrupt Practices Act of 1977, to
strengthen prohibitions on international bribery and other
corrupt practices, and for other purposes'', and agree the
Senate amendment numbered 1 with the following amendment:
In lieu of the matter proposed to be stricken by such
amendment strike line 8 on page 23 of the House engrossed
amendments and all that follows through line 2 on page 25 and
insert the following:
(c) Extension of Legal Process.--
(1) In general.--Except as required by international
agreements to which the United States is a party, an
international organization providing commercial
communications services, its officials and employees, and its
records shall not be accorded immunity from suit or legal
process for any act or omission taken in connection with such
organization's capacity as a provider, directly or
indirectly, of commercial telecommunications services to,
from, or within the United States.
(2) No effect on personal liability.--Paragraph (1) shall
not affect any immunity from personal liability of any
individual who is an official or employee of an international
organization providing commercial communications services.
(3) Effective date.--This subsection shall take effect on
May 1, 1999.
(d) Elimination or Limitation of Exceptions.--
(1) Action required.--The President shall, in a manner that
is consistent with requirements in international agreements
to which the United States is a party, expeditiously take all
appropriate actions necessary to eliminate or to reduce
substantially all privileges and immunities that are accorded
to an international organization described in subparagraph
(A) or (B) of subsection (a)(1), its officials, its
employees, or its records, and that are not eliminated
pursuant to subsection (c).
(2) Designation of agreements.--The President shall
designate which agreements constitute international
agreements to which the United States is a party for purposes
of this section.
colloquy on s. 2375
Mr. D'AMATO. I am aware that the Senator from Montana has raised
concerns regarding section 5 of the bill. Do the amendments considered
by the Senate today satisfy your concerns?
Mr. SARBANES. If the Senator would yield, as the Ranking Democrat of
the Senate Banking Committee, I would also like to know the views of
the Senator from Montana.
Mr. BURNS. I thank my colleagues. Yes, the amendments do satisfy my
concerns.
The amendments to the Foreign Corrupt Practices Act (FCPA) approved
by the Senate today, to implement in the United States the OECD
Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions, are an important achievement in
ensuring fair play for American companies doing business overseas. The
value of this legislation for U.S. business fully justifies the action
we are taking today. However, there are provisions in this bill that
are unrelated to implementation of the
[[Page S12974]]
OECD convention. I would have preferred a bill that did not contain
these unrelated provisions, principally embodied in Section 5.
The House earlier passed S. 2375 with an amendment making significant
changes to language addressing the treatment of international
organizations providing commercial communications services which had
earlier been contained in Section 5 of H.R. 4353 as reported by the
House Commerce Committee. These changes reflect an agreement between
the House and Senate Commerce Committee leaders. It is my understanding
that the House Commerce Committee report accompanying H.R. 4353
addressing Section 5 of that bill is not germane to the interpretation
of section 5 in light of the significant changes made therein.
With respect to Section 5 and the other provisions of the bill
concerning the international organizations INTELSAT and Inmarsat, the
Senate is accepting these provisions because of our understanding that
nothing in the bill will change the immunities treatment of INTELSAT
and Inmarsat, nor create an inconsistency with U.S. obligations under
international agreements (e.g., by requiring action or inaction by the
Executive Branch) or interfere with the President's authorities under
the constitution to conduct the foreign relations of the United States.
To achieve the objectives of Section 5, the President can be expected
to use existing and future negotiations aimed at the privatization of
the telecommunications services of INTELSAT and Inmarsat.
I have the following specific views with regard to the bill's
telecommunications provisions:
The United States remains in a positions to meet fully its
obligations under the INTELSAT Headquarters Agreement, an international
agreement under which the United States has undertaken international
legal obligations to INTELSAT. Nothing in the statute changes the
immunity standards of that Agreement. Based on my discussions with the
administration, I expect that the President will designate the INTELSAT
Headquarters Agreement under subsection (d)(2).
The requirement in [section 5(d)(1)] for the President, consistent
with requirements in international agreements to which the U.S. is a
party, to take all appropriate actions to eliminate or limit
substantially any privileges and immunities from suit or legal process
accorded to an international organization applies only to suits or
legal process in respect of the organizations' commercial activities.
Such an interpretation would be consistent with the theory of sovereign
immunity to which the United States adheres.
The requirements [in Section 5(d)] for the President, consistent with
requirements in international agreements to which the U.S. is a party,
expeditiously take all appropriate actions to eliminate or limit
substantially privileges and immunities does not compel the President
to take any action which the President may find to be contrary to the
interests of the United States and does not compel the President to
decertify INTELSAT or Inmarsat under the International Organizations
Immunities Act I am pleased that subsection 5(d) gives the President
broad discretion to determine what measures are ``appropriate'' to
achieve the objectives of section 5.
The bill should not frustrate negotiations by the President to
privatize successfully the commercial activities of INTELSAT and
Inmarsat in a fashion that eliminates all privileges and immunities for
such activities; this being the best means of satisfying the objective
of fair and open commercial competition.
I further understand that all efforts of INTELSAT and Inmarsat to
restructure into private business organizations constitute core
functions of these organizations, not commercial functions, within the
meaning of subsection (c)(1) of Section 5.
I understand that Section (5) of S. 2375 is not intended to overturn
or disturb any judicial decision interpreting the privileges and
immunities of signatories of INTELSAT and Inmarsat, especially Alpha
Lyracom (PanAmSat) v. COMSAT, 946 F.2d 168 (2d Cir. 1991).
It is my understanding that subsection (d) of Section (5) is intended
to become effective on May 1, 1999 when subsection (c) becomes
effective, since the two subsections are intended to operate in
concert.
I appreciate the opportunity to clarify the scope and intent of this
legislation. At this time, I would like to ask the distinguished
Senator from Arizona, the Chairman of the Committee on Commerce,
Science and Transportation if he concurs?
Mr. McCAIN. I thank the Senator from Montana. I do concur with the
statements just delivered concerning the interpretation of Section 5 in
S. 2375.
Mr. BURNS. I thank my colleague from Arizona.
Mr. DeWINE. Mr. President, I ask that the Senate recede from its
amendments numbered 2 through 6. I further ask the Senate concur in the
House amendment to the Senate amendment numbered 1.
The PRESIDING OFFICER. Without objection, it is so ordered.
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