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Harry Cassin
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Both Sides Now

Yesterday’s post in this space about the U.K. Proceeds of Crime Act came from Barry Vitou and Richard Kovalevsky QC, who write

Today we’ve reciprocated with a note to about the FCPA and judicial review.

Because the FCPA and the Bribery Act reach everywhere, many companies will need to start complying with both. That’s going to be trickier than it sounds, partly because of differences between the two laws.

And it’s why new resources with practical, high-level discussion, like, are so important.

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  1. The most talked-about difference between the UK Act and the FCPA: no facilitation payments, frankly isn't that much different from what most companies do now. Facilitation payments are just too tricky to monitor in any real way, so most companies do one of two things: outlaw them, or make an approval process so high-level (approval by the CEO kind of thing) that the approval process is a disincentive. Most companies then just ignore the whole issue. When I talk to companies about whether their chart of accounts has a place to accurately label facilitation payments, most don't know what a chart of accounts is.

    The biggest change is the prohibition on commercial, that is, non-governmental, bribery. Compliance officers started getting nervous after the CCI case where the DOJ used the Travel Act to prosecute private bribery. That's a game changer. The Bribery Act just codified the new reality. And for compliance officers, it's an unwelcome reality. The impact on the operational functions of the business—sales and marketing particularly—just exploded, and made compliance officers' jobs that much harder.

  2. Both this blog and have been displaying great commentary of the events surrounding the UK Bribery Act and the FCPA. The fact that many businesses are going to have to comply with both laws is going to be a big challenge for a lot of companies- but is certainly necessary to make business transactions fair and ethical. The introduction of the Bribery Act ups the ante, but I think this is the kick companies need to keep a closer eye on how business is being conducted throughout their companies.

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