Money Doesn’t Solve Everything While Traveling Abroad

Avid travelers can navigate through unfamiliar territory with ease. There’s an understanding that differing cultural norms will create differing legal frameworks. What may be considered an acceptable practice in one country might be vehemently condemned in another. In some countries, it’s necessary to dress a certain way, in others, substances considered illegal in the U.S. are totally acceptable. A commonly heard piece of advice among global nomads is, “when in Rome–do as the Romans do!” However, not many people know that certain commonplace activities in other countries may be considered crimes for U.S. residents no matter in what jurisdiction it occurs. The main culprit: bribes.

Cultural Norms vs. Legal Realities: The Global Dilemma

One of the fundamental tenets of global interactions is the acknowledgment that cultural norms and ethical values vary immensely across borders. What may seem like a customary gesture in one nation could be interpreted as an affront to morality in another. Paying bribes to officials in some communities can be seen as a way to facilitate smoother interactions, or a gesture of respect. Even if it’s technically illegal in the country in which it is taking place, some cultures tacitly understand that it’s a natural part of life. In the U.S., however, this is considered a highly corrupt practice and a punishable offense to give and–especially–take bribes.

FCPA: A Shield Against Bribery Abroad

To take action against this type of activity abroad, the U.S. enacted the Foreign Corrupt Practices Act (FCPA) 1977. It acts as a public stance against bribery on the international level, and also created the legal mechanism to combat any alleged corruption, such as the practice of bribing foreign officials to secure business advantages.

The core of the FCPA is an anti-bribery provision, which explicitly forbids the exchange of anything of value to foreign officials with the intention of influencing their actions. The FCPA extends its reach to include not only U.S. citizens and residents but also any entity—corporate or individual—subject to U.S. jurisdiction.

The Thin Line: Navigating the Definition of Bribery

For businesses and individuals operating in foreign lands, the challenge lies in discerning where cultural customs end and legal consequences begin. The very practices that might be considered routine or essential for conducting business in certain countries could potentially lead to serious legal ramifications when viewed through the lens of the FCPA. The FCPA takes a hard stance on bribery. It criminalizes any act of bribery, irrespective of the cultural context in which it occurs. For example, in many cultures it’s customary to present a gift at the beginning of a transaction, but the biggest question is: what kind of gifts are we allowed to give or receive? 

The key to everything lies in intent. Is the purpose of giving gifts, funding travel expenses, or entertainment to gain leverage over the other party with “corrupt” intent, or is it simply a kind gesture? Intent is an intangible concept that can vary greatly depending on individual circumstances and, of course, cultural backgrounds.

The Extent of Enforcement

Navigating the intricate realm of foreign business operations while upholding the principles of the FCPA presents both opportunities and challenges. The FCPA provides provisions regarding accounting practices. It requires that companies maintain accurate records, and have internal policies that prevent or detect bribery. Enforcement relies on reporting from whistleblowers, audits, and investigations by the U.S. Department of Justice (DOJ) and the U.S. Securities and Exchange Commission (SEC).

The enforcement of the FCPA involves rigorous investigations, potential penalties, and long-lasting repercussions. Criminal convictions or civil infractions can result in substantial fines, reputational damage, and even imprisonment for individuals held responsible. You can tread carefully by prioritizing compliance and seeking legal guidance from the firm of Weisberg Kainen Mark when in doubt. If you are concerned that your business or personal interests may be construed as unethical or unlawful by FCPA standards, call (305) 374-5544 for a consultation.

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Weisberg Kainen Mark, PL

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