[Senate Report 105-277]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 510
105th Congress                                                   Report
                                 SENATE

 2d Session                                                     105-277
_______________________________________________________________________


 
               THE INTERNATIONAL ANTI-BRIBERY ACT OF 1998

                                _______
                                

                 July 30, 1998.--Ordered to be printed

_______________________________________________________________________


Mr. D'Amato, from the Committee on Banking, Housing, and Urban Affairs, 
                        submitted the following

                              R E P O R T

                              Introduction

    On June 25, 1998, the Committee on Banking, Housing, and 
Urban Affairs, reported an original bill, S. 2375 the 
``International Anti-Bribery Act of 1998,'' to amend the 
Foreign Corrupt Practices Act of 1977 (``FCPA'') to implement 
the Organization for Economic Cooperation and Development 
(``OECD'') Convention on Combating Bribery of Foreign Public 
Officials in International Business Transactions. The Committee 
voted 18-0 to report the legislation to the Senate.

                       History of the Legislation

    In the wake of the Watergate scandals, the Securities and 
Exchange Commission discovered that many public companies were 
maintaining cash ``slush funds'' from which illegal campaign 
contributions were being made in the United States and illegal 
bribes were being paid to foreign officials. Subsequently, 
scandals involving payments by U.S. companies to public 
officials in Japan, Italy, and Mexico led to political 
repercussions within those countries and severely sullied the 
reputation of American companies throughout the world.
    In response, Congress passed the Foreign Corrupt Practices 
Act of 1977 (the ``FCPA''). Through this Act, the United States 
declared its policy that American companies should act 
ethically in bidding for foreign contracts and should act in 
accordance with the U.S. policy of encouraging the development 
of democratic institutions and honest, transparent business 
practices. The FCPA amended the Securities Exchange Act of 1934 
to require issuers covered under that Act to maintain 
transparent books and records and provided for civil and 
criminal penalties. In addition, the FCPA required both issuers 
and all other U.S. nationals and companies (defined as 
``domestic concerns'') to refrain from making any unlawful 
payments to public officials, political parties, party 
officials, or candidates for public office, directly or through 
others, for the purpose of causing that person to make a 
decision or take an action, or refrain from taking an action, 
for the purpose of obtaining or retaining business.
    Since the passage of the FCPA, American businesses have 
operated at a disadvantage relative to foreign competitors who 
have continued to pay bribes without fear of penalty. Such 
bribery is estimated to affect overseas procurements valued in 
the billions of dollars each year. Indeed, some of our trading 
partners have explicitly encouraged such bribes by permitting 
businesses to claim them as tax-deductible business expenses.
    It is impossible to calculate with certainty the losses 
suffered by U.S. businesses due to bribery by our foreign 
competitors. The Commerce Department has stated that it has 
learned of significant allegations of bribery by foreign firms 
in approximately 180 international commercial contracts since 
mid-1994, contracts that were valued at nearly $80 billion. 
This legislation, coupled with implementation of the OECD 
Convention by our major trading partners, will go a long way 
towards leveling the playing field for U.S. businesses in 
international contracts.
    In 1988, Congress directed the Executive Branch actively to 
seek to level the playing field by encouraging our trading 
partners to enact legislation similar to the FCPA. These 
efforts eventually culminated in the Organization for Economic 
Cooperation and Development Convention on Combating Bribery of 
Foreign Public Officials in International Business Transactions 
(the ``OECD Convention''). Thirty-three countries, comprising 
most of the significant trading countries in the world, signed 
this Convention in Paris in December 1997. This Convention was 
forwarded by the President to the Senate on May 1, 1998.
    The OECD Convention calls on all parties to make it a 
criminal offense ``for any person intentionally to offer, 
promise or give any undue pecuniary or other advantage, whether 
directly or through intermediaries, to a foreign public 
official, for that official or for a third party, in order that 
the official act or refrain from acting in relation to the 
performance of official duties, in order to obtain or retain 
business or other improper advantage in the conduct of 
international business.'' It further calls on all parties to 
assert territorial jurisdiction broadly and, where consistent 
with national legal and constitutional principles, to assert 
nationality jurisdiction.
    This Act amends the FCPA to conform it to the requirements 
of and to implement the OECD Convention. First, the FCPA 
currently criminalizes payments made to influence any decision 
of a foreign official or to induce him to do or omit to do any 
act. The Act expands the FCPA's scope to include payments made 
to secure ``any improper advantage,'' the language used in the 
OECD Convention.
    Second, the OECD Convention calls on parties to cover ``any 
person''; the current FCPA covers only issuers with securities 
registered under the 1934 Securities Exchange Act and 
``domestic concerns.'' The Act, therefore, expands the FCPA's 
coverage to include all foreign persons who commit an act in 
furtherance of a foreign bribe while in the United States.
    Third, the OECD Convention includes officials of public 
international organizations within the definition of ``public 
official.'' Accordingly, the Act similarly expands the FCPA's 
definition of public officials to include officials of such 
organizations.
    Fourth, the OECD Convention calls on parties to assert 
nationality jurisdiction when consistent with national legal 
and constitutional principles. Accordingly, the Act amends 
theFCPA to provide for jurisdiction over the acts of U.S. businesses 
and nationals in furtherance of unlawful payments that take place 
wholly outside the United States. This exercise of jurisdiction over 
U.S. businesses and nationals for unlawful conduct abroad is consistent 
with U.S. legal and constitutional principles and is essential to 
protect U.S. interests abroad. It is within the constitutional grant of 
power to Congress to ``regulate Commerce with foreign Nations'' and to 
``define and punish * * * Offenses against the Law of Nations.'' U.S. 
Const. art. 1, Sec. 8, cl. 3 & 10.
    Fifth and finally, the Act amends the FCPA to eliminate the 
current disparity in penalties applicable to U.S. nationals and 
foreign nationals employed by or acting as agents of U.S. 
companies. In the current statute, foreign nationals employed 
by or acting as agents of U.S. companies are subject only to 
civil penalties. The Act eliminates this restriction and 
subjects all employees or agents of U.S. businesses to both 
civil and criminal penalties.

                           Section-By-Section

Section 1. Short title.

Section 2. Amendments relating to issuers of securities.

    Section 2(a) implements the OECD Convention by amending 
Sec. 30A of the Securities Exchange Act of 1934 to prohibit any 
payments made to foreign officials, foreign political parties, 
party officials, and candidates, directly or through other 
persons, for the purpose of securing ``any improper 
advantage.'' See OECD Convention, Art. 1, para. 1.
    Section 2(b) implements the OECD Convention by amending 
Sec. 30A(f)(1) to expand the definition of ``foreign official'' 
to include an official of a public international organization. 
See OECD Convention, Art. 1, para. 4(a). Public international 
organizations are then defined by reference to those 
organizations designated by Executive Order pursuant to the 
International Organizations Immunities Act (22 U.S.C. 
Sec. 288).
    Section 2(c) implements the OECD Convention by creating a 
new additional basis for jurisdiction over foreign bribery by 
U.S. issuers and U.S. persons that are officers, directors, 
employees, or agents, or stockholders or such issuers. See OECD 
Convention, Art. 4, para. 2. This section extends coverage for 
acts outside the United States to U.S. issuers that are 
organized under the laws of the United States or of a State, 
territory, or commonwealth, or a political subdivision thereof 
and U.S. persons acting on such issuers' behalf.
    Under the new Sec. 30A(f), U.S. issuers or U.S. persons 
acting on a U.S. issuers' behalf violate the FCPA if they make 
any of the payments prohibited under the existing statute 
outside of the United States, irrespective of whether in doing 
so they make any use of the mails or means or instrumentality 
of interstate commerce. Although this section limits liability 
to U.S. issuers and U.S. persons acting on U.S. issuers' 
behalf, it is expected that the established principles of 
liability, including principles of vicarious liability, that 
apply under the current version of the FCPA shall apply to the 
liability of U.S. issuers for acts taken on their behalf by 
their officers, directors, employees, agents, or stockholders 
outside the territory of the United States, regardless of the 
nationality of the officer, director, employee, agent, or 
stockholder.
    Section 2(c) also inserts references to the new offense in 
the provisions of the existing statute governing exceptions and 
affirmative defenses.
    Section 2(d) implements the OECD Convention by amending 
Sec. 32(c) of the Securities Exchange Act of 1934 to eliminate 
the current disparity in treatment between U.S. nationals that 
are employees or agents of issuers and foreign nationals that 
are employees or agents of issuers. Presently, foreign 
nationals who are employees or agents (as opposed to officers 
or directors) are subject only to civil sanctions. Eliminating 
this preferential treatment implements the OECD Convention's 
requirement that ``[e]ach Party shall take such measures as may 
be necessary to establish that it is a criminal offense under 
its law for any person to [make unlawful payments].'' In 
addition, section 2(d) provides that the same penalties shall 
apply to issuers for violation of the new provisions for acts 
outside the United States as apply to violations of the 
existing statute.

Section 3. Amendments relating to domestic concerns

    Section 3(a) implements the OECD Convention by amending 
Sec. 104(a) of the FCPA (15 U.S.C. Sec. 78dd-2(a)) to prohibit 
any payments made to foreign officials, foreign political 
parties, party officials, and candidates, directly or through 
other persons, for the purpose of securing ``any improper 
advantage.'' See OECD Convention, Art. 1, para. 1.
    Section 3(b) implements the OECD Convention by amending 
Sec. 104(h)(2) of the FCPA to expand the definition of 
``foreign official'' to include an official of a public 
international organization. See OECD Convention, Art. 1, para. 
4(a). Public international organizations are then defined by 
reference to those organizations recognized by Executive Order 
pursuant to the International Organizations Immunities Act (22 
U.S.C. Sec. 288).
    Section 3(c) implements the OECD Convention by creating a 
new additional basis for jurisdiction over foreign bribery by 
U.S. persons. See OECD Convention, Art. 4, para. 2. This 
section limits coverage to businesses organized under the laws 
of the United States, a State, territory, possession, or 
commonwealth, or a political subdivision thereof, or U.S. 
nationals. U.S. nationals are defined by reference to the 
Immigration and Nationality Act, 8 U.S.C. Sec. 1101 (22), which 
defines a ``national of the United States'' as ``(A) a citizen 
of the United States, or (B) a person, who though not a 
citizen, owes permanent allegiance to the United States.'' 
Under the new Sec. 104(h), a U.S. person violates the FCPA if 
it makes any of the payments prohibited under the existing 
statute outside of the United States, irrespective of whether 
in doing so it makes any use of the mails or means or 
instrumentality of interstate commerce. Although this section 
imposes liability only on U.S. persons, it is expected that the 
established principles of liability, including principles of 
vicarious liability, that apply under the current version of 
the FCPA shall apply to the liability of U.S. businesses for 
acts taken on their behalf by their officers, directors, 
employees, agents or stockholders outside the United States, 
regardless of the nationality of the officer, director, 
employee, agent, or stockholder. Section (3)(c) also inserts 
references to the new offense in the provisions of the existing 
statute governing exceptions, affirmative defenses, and 
injunctive relief.
    Section 3(d) implements the OECD Convention by eliminating 
the current disparity in treatment between U.S. nationals that 
are employees or agents of domestic concerns and foreign 
nationals that are employees or agents of domestic concerns. 
Presently, foreign nationals who are employees or agents (as 
opposed to officers or directors) are subject only to civil 
sanctions. Eliminating this preferential treatment implements 
the OECD Convention's requirement that ``[e]ach Party shall 
take such measures as may be necessary to establish that it is 
a criminal offense under its law for any person to [make 
unlawful payments].'' In addition, section 3(d) provides that 
the same penalties shall apply to U.S. persons for violation of 
the new Sec. 104(h) for acts outside the United States as apply 
to violations of the existing FCPA.
    Section 3(e) is a technical amendment to delete unnecessary 
language from the definition of 11 routine governmental action. 
The term is not used in paragraph (1) of subsection (h) and 
this language is not used in the otherwise identical definition 
in Sec. 30A(f)(3)(A) (redesignated by this Act as 
Sec. 30A(g)(3)(A)).

Section 4. Amendment relating to other persons

    Section 4 creates a new section in the FCPA providing for 
criminal and civil penalties over persons not covered under the 
existing FCPA provisions regarding issuers and domestic 
concerns. This section closes the gap left in the original FCPA 
and implements the OECD Convention's requirement that Parties 
criminalize bribery by ``any person.'' OECD Convention, Art. 1, 
para. 1. The prohibited acts are the same as those covered by 
Sec. 30A(a) and Sec. 104(a) with two qualifications.
    First, the offense created under this section requires that 
an act in furtherance of the bribe be taken within the 
territory of the United States. The OECD Convention requires 
each Party 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.'' OECD Convention, Art. 4, para. 1. The new 
offense complies with this section by providing for criminal 
jurisdiction in this country over bribery by foreign nationals 
of foreign officials when the foreign national takes some act 
in furtherance of the bribery within the territory of the 
United States. It is expected that the established principles 
of liability, including principles of vicarious liability, that 
apply under the current version of the FCPA shall apply to the 
liability of foreign businesses for acts taken on their behalf 
by their officers, directors, employees, agents or stockholders 
in the territory of the United States, regardless of the 
nationality of the officer, director, employee, agent, or 
stockholder.
    As envisioned by the negotiators, Congress intends that the 
``territorial basis for jurisdiction should be interpreted 
broadly so that an extensive physical connection to the bribery 
act is not required.'' See Commentaries on the Convention on 
Combating Bribery of Foreign Public Officials in International 
Business Transactions (OECD Commentary) at para. 24. Further, 
``territory of the United States'' should be understood to 
encompass all areas over which the United States asserts 
territorial jurisdiction. See 18 U.S.C. Sec. 5 (``The term 
`United States', as used in this title in a territorial sense, 
includes all places and waters, continental or insular, subject 
to the jurisdiction of the United States, except the Canal 
Zone.''); 18 U.S.C. Sec. 7 (special maritime and territorial 
jurisdiction of the United States; 49 U.S.C. Sec. 46501(2) 
(special aircraft jurisdiction of the United States).
    Although this section limits jurisdiction over foreign 
nationals and companies to instances in which the foreign 
national or company takes some action while physically present 
within the territory of the United States, Congress does not 
thereby intend to place a similar limit on the exercise of U.S. 
criminal jurisdiction over foreign nationals and companies 
under any other statute or regulation.
    The second difference from the existing FCPA provisions is 
that this section expands the commerce nexus to include not 
only the use of the mails or any means or instrumentality of 
interstate commerce but ``any other act'' within the United 
States. It is the view of Congress that any act committed by a 
foreign national within the United States that is in 
furtherance of a bribe paid to a foreign official falls within 
the Congress' power to regulate ``Commerce with foreign 
Nations.'' U.S. Const., Art. 1, sec. 8, cl. 3.
    Finally, section 4 defines ``covered person'', as used in 
this section, to mean any natural person other than a U.S. 
national and any business organized under the laws of a foreign 
nation or a political subdivision thereof.

                      Regulatory Impact Statement

    This legislation is designed to implement the recently 
signed OECD Convention on Combating Bribery of Foreign Public 
Officials in International Business Transactions. The United 
States has been urging other industrialized countries to 
observe principles similar to the provisions of the Foreign 
Corrupt Practices Act. Once adopted, the Convention will 
establish an international regime of ethical conduct in 
business transactions. The Committee believes that this 
legislation will have little or no regulatory impact.

               Congressional Budget Office Cost Estimate

    The Congressional Budget Office estimates that implementing 
this legislation would not result in any significant cost to 
the federal government. Because enactment of the bill could 
affect direct spending and receipts, pay-as-you-go procedures 
would apply. However, CBO estimates that any impact on direct 
spending and receipts would not be significant.
    The legislation is excluded from the application of the 
Unfunded Mandates Reform Act (UMRA) under section 4 of that 
act, because it would amend the Foreign Corrupt Practices Act 
(FCPA) in ways that are necessary to implement the Organization 
for Economic Cooperation and Development Convention on 
Combating Bribery of Foreign Public Officials in International 
Business Transactions. Section 4 of UMRA excludes from the 
application of that act any legislative provisions that are 
necessary for the ratification or implementation of 
international treaty obligations.

                        changes in existing law

    In the opinion of the Committee, it is necessary to 
dispense with the requirement of subsection 12 of rule XXVI of 
the Standing Rules of the Senate in order to expedite the 
business of the Senate.
                                APPENDIX

                              ----------                              

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                       Washington, DC, May 4, 1998.
Hon. Albert Gore, Jr.,
President, U.S. Senate,
Washington, DC.
    Dear Mr. President: Enclosed herewith is a draft bill, the 
``International Anti-Bribery Act of 1998,'' which contains 
legislative proposals to implement the Organization for 
Economic Cooperation and Development (OECD) Convention on 
Combating Bribery of Foreign Public Officials in International 
Business Transactions (the ``OECD Convention''). This 
Convention was forwarded by the President to the Senate on May 
1, 1998, for its advice and consent.
    Administrations of both parties have long urged our trading 
partners to criminalize bribery of foreign public officials by 
their nationals, as the United States did in 1977 in the 
Foreign Corrupt Practices Act of 1997 (the ``FCPA''). These 
bipartisan efforts finally succeeded when thirty-three 
countries signed the OECD Convention in Paris in December of 
last year. The OECD Convention, when fully implemented by all 
parties, will help create the level playing field and 
transparent contracting long sought by American businesses as 
they compete around the world for public contracts.
    The OECD Convention calls on all parties to make it a 
criminal offense ``for any person intentionally to offer, 
promise or give any undue pecuniary or other advantage, whether 
directly or through intermediaries, to a foreign public 
official, for that official or for a third party, in order that 
the official act or refrain from acting in relation to the 
performance of official duties, in order to obtain or retain 
business or other improper advantage in the conduct of 
international business.'' It further calls on all parties to 
exert territorial jurisdiction broadly and, where consistent 
with national legal and constitutional principles, nationality 
jurisdiction.
    The draft bill would amend the FCPA to conform to the 
requirements of and to implement the OECD Convention. First, 
the FCPA currently criminalizes payments made to influence any 
decision of a foreign official or to induce him to do or omit 
todo any act in order to obtain or retain business. The bill 
would make explicit that payments made to secure ``any improper 
advantage,'' the language used in the OECD Convention, are prohibited 
by the FCPA.
    Second, the OECD Convention calls on parties to cover ``any 
person.'' The current FCPA covers only issuers with securities 
registered under the 1934 Securities Exchange Act and 
``domestic concerns.'' The bill would, therefore, expand 
coverage to include all foreign persons who commit an act in 
furtherance of a foreign bribe while in the United States.
    Third, the OECD Convention includes officials of public 
international organizations within the definition of ``public 
official.'' Accordingly, the bill similarly expands the FCPA 
definition of public officials to include officials of such 
organizations.
    Fourth, the OECD Convention calls on parties to assert 
nationality jurisdiction over offenses committed abroad when 
consistent with national legal and constitutional principles. 
Accordingly, the bill would provide for jurisdiction over the 
acts of U.S. businesses and nationals in furtherance of 
unlawful payments that take place wholly outside the United 
States.
    Fifth and finally, the bill would amend the penalties 
applicable to employees and agents of U.S. businesses to 
eliminate the current disparity between U.S. nationals and non-
U.S. nationals employed by or acting as agents of U.S. 
companies. In the current statute, such non-U.S. nationals are 
subject only to civil penalties. The bill would eliminate this 
restriction and subject all employees or agents of U.S. 
businesses to both civil and criminal penalties.
    The International Anti-Bribery Act would affect receipts 
(new criminal fines) and direct spending (outlays from the 
Crime Victims Fund (CVF)). Therefore, it is subject to the pay-
as-you-go requirement of the Omnibus Budget Reconciliation Act. 
Receipts from fines would be deposited into the CVF and could 
be spent in the following year. Thus, direct spending from the 
CVF would match the deposits into the CVF with a one-year lag. 
Our preliminary estimate is that the net effect of the enrolled 
bill on the deficit will be less than $500,000 annually. This 
proposal should be considered in conjunction with all other 
proposals that are subject to the pay-as-you-go requirement.
    With respect to potential impacts on the criminal justice 
system, the bill imposes new criminal penalties on two classes 
of persons: (a) foreign nationals employed by or acting as 
agents of U.S. companies, and (b) foreign nationals and foreign 
companies that engage in unlawful acts in the U.S. In addition, 
the liability of U.S. persons is expanded to the extent that 
unlawful acts taken wholly outside the United States will now 
result in the small penalties as those taken within the United 
States under the existing statute.
    It would be appreciated if you would lay this draft bill 
before the Senate. An identical proposal has been transmitted 
to the Speaker of the House of Representatives.
    The Office of Management and Budget has advised that there 
is no objection to the presentation of this proposal to the 
Congress from the standpoint of the Administration's program.
            Sincerely,
                                            Ann M. Harkins,
                                 Acting Assistant Attorney General.

                                
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