Small Bribes Cause Big Flap

There’s no exception in the FCPA for ‘small’ (de minimus) bribes. The statute outlaws any payment or promise to pay anything of value.

Because the de minimus standard isn’t there, critics call the FCPA impractical and out of step with the way the world really works. Prosecute grand corruption, they argue, but don’t sweat the small stuff.

But there’s another way to look at little bribes.

Here’s how one reader explained it to us:

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On the de minimus issue, America’s domestic bribery laws have no such exception, and it is not contemplated by the OECD Anti-Bribery Convention.

Indeed, one of the hallmarks of an appropriate foreign bribery enforcement program is its comparison to domestic bribery law. The OECD’s Working Group on Bribery often looks to the domestic bribery laws of a country to evaluate a member’s foreign bribery law. So, in considering penalties, for example, the comparison is often made to ensure that the country is taking its obligations with regard to foreign bribery as seriously as it does domestic bribery. 

There is no de minimus exception in our domestic bribery laws for good reason. A $50 bribe to get a driver’s license may seem like a small amount of money, and in the grand scheme of things, it is. But when that driver’s license is being obtained by a would-be terrorist or the guy driving your kids’ school bus, that is conduct that becomes much more serious and you wouldn’t want to be constrained because of the amount.  So, too, in the foreign bribery context.

The FCPA does have – to some degree – a de minimus exception as a practical matter: facilitation payments. In fact, the Working Group’s U.S. Phase 3 report heavily criticized the U.S. for having such an exception. 

The United States government ends up getting criticized from both sides. Criticized for a facilitation payments exception that doesn’t go far enough, and criticized for having a facilitation payments exception at all.

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