[2] INTERNATIONAL BRIBERY AND FAIR COMPETITION ACT (1998)
...............United States Congress (Public Law 105-366, 1998 Sec. 2375)
.....An
Act to amend the Securities Exchange Act of 1934 and the
Foreign Corrupt Practices Act of 1977 to improve the competitiveness
of American business and promote foreign commerce, and for other
purposes.
.....Be
it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "International Anti-Bribery
and Fair Competition Act of 1998".
SEC. 2. AMENDMENTS TO THE FOREIGN
CORRUPT PRACTICES ACT GOVERNING [SECURITIES] ISSUERS.
(a) PROHIBITED CONDUCT.-- ...
[15 U.S.C. 78dd-1(a)] is amended--
......(1)
by amending subparagraph (A) of paragraph (1) to read as follows:
"(A)(i) influencing any act or decision of such foreign official in his official capacity, (ii) inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official, or (iii) securing any improper advantage; or";
......(2) by amending subparagraph (A) of paragraph (2) to read as follows:
..........."(A)(i) influencing any act or decision of such party, official, or candidate in its or his official capacity, (ii) inducing such party, official, or candidate to do or omit to do an act in violation of the lawful duty of such party, official, or candidate, or (iii) securing any improper advantage; or"; and
......(3)
by amending subparagraph (A) of paragraph (3) to read as follows:
..........."(A)(i)
influencing any act or decision of such foreign official, political
party, party official, or candidate in his or its official capacity,
(ii) inducing such foreign official, political party, party official,
or candidate to do or omit to do any act in violation of the
lawful duty of such foreign official, political party, party
official, or candidate, or (iii) securing any improper advantage;
or".
(b) OFFICIALS OF INTERNATIONAL ORGANIZATIONS.--Paragraph (1) of ... [15 U.S.C. 78dd-1(f)(1)] is amended to read as follows:
"(1)(A) The term 'foreign official' means any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization.
......"(B) For purposes of subparagraph (A), the term 'public international organization' means--
............."(i) an organization that is designated by Executive order pursuant to section 1 of the International Organizations Immunities Act (22 U.S.C. 288); or
............."(ii) any other international organization that is designated by the President by Executive order for the purposes of this section, effective as of the date of publication of such order in the Federal Register.".
(c) ALTERNATIVE JURISDICTION OVER
ACTS OUTSIDE THE UNITED STATES.--
...
[15 U.S.C. 78dd-1] is amended--
.....(1)
by adding at the end the following:
.........................................................................................
..........(g)
ALTERNATIVE JURISDICTION.--
"(1) It shall also be unlawful for any issuer organized under the laws of the United States, or a State, territory, possession, or commonwealth of the United States or a political subdivision thereof and which has a class of securities registered pursuant to section 12 of this title or which is required to file reports under section 15(d) of this title, or for any United States person that is an officer, director, employee, or agent of such issuer or a stockholder thereof acting on behalf of such issuer, to corruptly do any act outside the United States in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to any of the persons or entities set forth in paragraphs (1), (2), and (3) of subsection (a) of this section for the purposes set forth therein, irrespective of whether such issuer or such officer, director, employee, agent, or stockholder makes use of the mails or any means or instrumentality of interstate commerce in furtherance of such offer, gift, payment, promise, or authorization.
"(2) As used in this subsection, the term 'United States person' means a national of the United States (as defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)) or any corporation, partnership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship organized under the laws of the United States or any State, territory, possession, or commonwealth of the United States, or any political subdivision thereof.";
....................................................................................
"(e) PENALTIES.--
......"(1)(A) Any juridical person that violates subsection (a) of this section shall be fined not more than $2,000,000.
..........."(B) Any juridical [corporate] person that violates subsection (a) of this section shall
be subject to a civil penalty of not more than $10,000 imposed in an action brought by the Attorney General.
......"(2)(A) Any natural person who willfully violates subsection (a) of this section shall be fined not more than $100,000 or imprisoned not more than 5 years, or both.
..........."(B) Any natural person who violates subsection (a) of this section shall be subject to a civil penalty of not more than $10,000 imposed in an action brought by the Attorney General.
......"(3) Whenever a fine is imposed under paragraph (2) upon any officer, director, employee, agent, or stockholder of a person, such fine may not be paid, directly or indirectly, by such person.
......."(f)
DEFINITIONS.--For purposes of
this section:
............."(1)
The term "person', when referring to an offender, means
any natural person other than a national of the United States
(as defined in section 101 of the Immigration and Nationality
Act (8 U.S.C. 1101) or any corporation, partnership, association,
joint-stock company, business trust, unincorporated organization,
or sole proprietorship organized under the law of a foreign nation
or a political subdivision thereof.
.............."(2)(A)
The term 'foreign official' means any officer or employee of
a foreign government or any department, agency, or instrumentality
thereof, or of a public international organization, or any person
acting in an official capacity for or on behalf of any such government
or department, agency, or instrumentality, or for or on behalf
of any such public international organization.
...................."(B) For purposes of subparagraph (A),
the term 'public international organization' means--
..........................."(i) an organization that is designated
by Executive order pursuant to section 1 of the International
Organizations.Immunities
Act (22 U.S.C. 288); or
..........................."(ii) any other international organization
that is designated by the President by Executive order for the
purposes of this section, effective as of the date of publication
of such order in the Federal Register.
................"(3)(A)
A person's state of mind is knowing, with respect to conduct,
a circumstance or a result if--
............................"(i) such person is aware that such person
is engaging in such conduct, that such circumstance exists, or
that such ....result
is substantially certain to occur; or
............................"(ii) such person has a firm belief that
such circumstance exists or that such result is substantially
certain to occur.
......................"(B) When knowledge of the existence of
a particular circumstance is required for an offense, such knowledge
is established if a person is aware of a high probability of
the existence of such circumstance, unless the person actually
believes that such circumstance does not exist.
................."(4)(A)
The term 'routine governmental action' means only an action which
is ordinarily and commonly performed by a foreign official in--
........................"(i) obtaining permits, licenses, or other
official documents to qualify a person to do business in a foreign
country;
........................."(ii) processing governmental papers, such
as visas and work orders;
........................."(iii) providing police protection, mail
pick-up and delivery, or scheduling inspections associated with
contract performance or inspections related to transit of goods
across country;
........................."(iv) providing phone service, power and
water supply, loading and unloading cargo, or protecting perishable
products or commodities from deterioration; or
........................."(v) actions of a similar nature.
............. .. ....."(B) The term 'routine governmental action'
does not include any decision by a foreign official whether,
or on what terms, to award new business to or to continue business
with a particular party, or any action taken by a foreign official
involved in the decision-making process to encourage a decision
to award new business to or continue business with a particular
party.
................."(5)
The term 'interstate commerce' means trade, commerce, transportation,
or communication among the several States, or between any foreign
country and any State or between any State and any place or ship
outside thereof, and such term includes the intrastate use of--
......................."(A) a telephone or other interstate means
of communication, or
......................."(B) any other interstate instrumentality.".
....................................................................................... . . .
SEC. 6. ENFORCEMENT AND MONITORING.
(a) REPORTS REQUIRED.--Not later
than July 1 of 1999 and each of the 5 succeeding years, the Secretary
of Commerce shall submit to the House of Representatives and
the Senate a report that contains the following information with
respect to implementation of the Convention:
....(1)
RATIFICATION.--A list of the countries that have ratified
the Convention, the dates of ratification by such countries,
and the entry into force for each such country.
....(2)
DOMESTIC LEGISLATION.--A description of domestic laws
enacted by each party to the Convention that implement commitments
under the Convention, and assessment of the compatibility of
such laws with the Convention.
....(3)
ENFORCEMENT.--As assessment of the measures taken by each
party to the Convention during the previous year to fulfill its
obligations under the Convention and achieve its object and purpose
including--
(A) an assessment of the enforcement of the domestic laws described in paragraph (2);
(B) an assessment of the efforts by each such party to promote public awareness of such domestic laws and the achievement of such object and purpose; and
(C) an assessment of the effectiveness, transparency, and viability of the monitoring process for the Convention, including its inclusion of input from the private sector and nongovernmental organizations.
....(4) LAWS PROHIBITING TAX DEDUCTION OF BRIBES.--An explanation of the domestic laws enacted by each party to the Convention that would prohibit the deduction of bribes in the computation of domestic taxes.
....(5)
NEW SIGNATORIES.--A description of efforts to expand international
participation in the Convention by adding new signatories to
the Convention and by assuring that all countries which are or
become members of the Organization for Economic Cooperation and
Development are also parties to the
Convention.
....(6) SUBSEQUENT EFFORTS.--An assessment of the status of efforts to strengthen the Convention by extending the prohibitions contained in the Convention to cover bribes to political parties, party officials, and candidates for political office.
....(7) ADVANTAGES.--Advantages, in terms of immunities, market access, or otherwise, in the countries or regions served by the organizations described in section 5(a), the reason for such advantages, and an assessment of progress toward fulfilling the policy described in that section.
....(8)
BRIBERY AND TRANSPARENCY.--An assessment of anti-bribery
programs and transparency with respect to each of the international
organizations covered
by this Act.
....(9) PRIVATE SECTOR REVIEW.--A description of the steps taken to ensure full involvement of United States private sector participants and representatives of nongovernmental organizations in the monitoring and implementation of the Convention.
....(10) ADDITIONAL INFORMATION.--In consultation with the private sector participants and representatives of nongovernmental organizations described in paragraph (9), a list of additional means for enlarging the scope of the Convention and otherwise increasing its effectiveness. Such additional means shall include, but not be limited to, improved recordkeeping provisions and the desirability of expanding the applicability of the Convention to additional individuals and organizations and the impact on United States business of section 30A of the Securities Exchange Act of 1934 and sections 104 and 104A of the Foreign Corrupt Practices Act of 1977
(b) DEFINITION.--For purposes of this section, the term "Convention" means the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions adopted on November 21, 1997, and signed on December 17, 1997, by the United States and 32 other nations.
Approved November 10, 1998.
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