Screen a proposed payment against the FCPA anti-bribery prohibitions
Key facts
- Human involvement
- YellowClose supervision
- How AI is used
- List whether the file shows an issuer under 15 U.S.C. § 78dd-1 or a domestic concern under § 78dd-2, who would receive the payment, and the purpose the file states. Do not say that an offence is committed.
- What the lawyer must review
- You decide whether either section reaches the payment. Section 78dd-1 makes it unlawful for an issuer which has a class of securities registered pursuant to section 78l of title 15, or which is required to file reports under section 78o(d), or for an officer, director, employee, or agent of that issuer, or a stockholder acting on its behalf, to use the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or an offer, gift, promise to give, or authorization of the giving of anything of value, to a foreign official, a foreign political party or official thereof, or a candidate for foreign political office, or to any person while knowing that all or a portion will be offered, given, or promised, directly or indirectly, to such a recipient, for a purpose the section states, in order to assist the issuer in obtaining or retaining business for or with, or directing business to, any person. Section 78dd-2 is the parallel prohibition for a domestic concern other than an issuer subject to section 78dd-1, and for an officer, director, employee, or agent of that domestic concern or a stockholder acting on its behalf. A domestic concern means an individual who is a citizen, national, or resident of the United States, and a corporation, partnership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship which has its principal place of business in the United States or is organized under the laws of a State, territory, possession, or commonwealth. A 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 of them. Subsection (b) of each section does not apply the prohibition to a facilitating or expediting payment whose purpose is to expedite or secure a routine governmental action. The same sections say routine governmental action does not include a decision whether, or on what terms, to award new business or to continue business with a particular party. Subsection (c) states affirmative defenses, including that the payment was lawful under the written laws and regulations of that country, and that it was a reasonable and bona fide expenditure, such as travel and lodging, directly related to the promotion, demonstration, or explanation of products or services, or to the execution or performance of a contract with a foreign government or agency thereof. These sections do not create an offence of failing to prevent someone else from paying a bribe. The tool does not decide that a defense is made out, and it writes nothing for a filing.
- Written for / version
- United States versionUS
Who does what
| Role | What they do |
|---|---|
| Assistance | Consider narrowly defined preparation support after confirming the tool’s capability and permitted scope. |
| Lawyer | Set the scope, supervise the work closely, verify every part relied on, resolve omissions and exceptions, and approve the exact output. |
Checklist
- Trace every relied-on figure to its source, confirm dates and assumptions, and independently recalculate totals or derived amounts.
- Check the current court or regulator requirements, prescribed form and attachments for the intended document and filing.
- Review operative clauses in the complete document, including definitions, cross-references, schedules and inconsistencies with the instructions.
- Confirm instructions and personal circumstances through appropriate direct engagement. Have the responsible lawyer assess safety, capacity or vulnerability concerns and escalation.
- Obtain and inspect the relevant current official register or search result. Confirm identities, interests and the date and scope of the search.
- Verify the applicable jurisdiction and the version of each relevant law, rule or instrument in force at the material time.
- Confirm the output against the client’s instructions and the complete relevant source material, including omissions or contradictions.
- Resolve exceptions and record the responsible lawyer’s approval of the exact output and intended use.