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How to Succeed in International Business and Comply With U.S. Laws Prohibiting Corrupt Payments, without Losing out to Foreign Competition

Frank J. Schuchat, International Resources Law: Today's Oil, Gas, and Mining Projects (1997)

The laws and regulations involving export trade and foreign investment that should be of concern to U.S. businesses and to their agents, affiliates, customers and legal advisors include the Foreign Corrupt Practices Act (“FCPA”)1, “dual use” export controls implemented in the Department of Commerce's Export Administration Regulations (“EAR”)2, the U.S. antiboycott law3 (also [7A-2] implemented through the EAR), the International Traffic in Arms Regulations (“ITAR”)4 administered by the Department of State, and a multiplicity of embargoes and transaction controls administered by the Department of Treasury's Office of Foreign Asset Controls (“OFAC”)5 or enacted by Congress in response to specific concerns in a particular country.6

This paper focuses primarily on the FCPA and collateral legal consequences that may result where conduct on the ground falls short of the FCPA's proscriptions. The paper describes a strategy for reducing the risk that a company subject to the FCPA will fail to be in compliance and provides some background on U.S. government-led efforts to promote a multilateral [7A-3] approach to the problem of corrupt payments to secure business outside a company's home territory. If these efforts progress, the use of internal compliance measures could become equally important for many companies now outside of the reach of U.S. law. That would be a result th