Austria: U.S.: Highly Anticipated FCPA Resource Guide released

Last Updated: 21 December 2012
Article by Heidemarie Paulitsch and Gabriel Amann

Most Read Contributor in Austria, September 2019

The U.S. Securities and Exchange Commission and the U.S. Department of Justice recently released a "Resource Guide to the U.S. Foreign Corrupt Practices Act" regarding the application and enforcement of the Foreign Corrupt Practices Act ("FCPA") The Guide is available at:

While the FCPA Resource Guide ("Guide") does not represent a change in FCPA enforcement, it includes an extensive discussion of the FCPA. It provides useful examples and consolidates the relevant existing case law and the Guiding Principles for the enforcement of the FCPA in the U.S.

In practical terms, the Guide provides helpful guidance on the set-up of a compliance program by companies.

1. Compliance Program Guidance

The Guide provides the standards and cornerstones for the set-up of a compliance program. Each company has to establish a tailor-made structure for itself. As there is no "one-size fits it all" approach, each program should be adapted according to the specific risks the company is facing.

However, according to the approach taken by the U.S. authorities, certain common criteria for an efficient compliance program do exist:

  • Risk assessment: A Risk Assessment is fundamental for the development of a strong compliance program. Based on the risks identified, the company should accordingly devote the necessary resources to addressing these risks.
  • Training and Continuing Advice: Communication of compliance throughout the company is essential. The compliance program should be followed and adhered to by employees at all levels of the company.

    The training audience might differ according to the degree an employee is exposed to certain risks (e.g. sales personnel encounter other risks than accounting staff).

    Besides providing accurate training, the company, depending on the size and complexity of its business, should in any event install appropriate measures to advise its staff on the company's ethical principles and its compliance program.
  • Incentives and Disciplinary measures: First and foremost, the program should cover all members of the company; no one should be beyond its reach. Violations should be sanctioned by disciplinary measures. The Guide notes that positive incentives for staff members in the form of promotions, or for improving and developing a company's compliance program and for ethical and compliant leadership, may further optimize a compliance pro-gram
  • Third-Party Due Diligence: Third parties, including consultants and agents, can be misused to conceal the payment of bribes. Performing a risk-based due diligence before operating with third parties is therefore of key importance. While the specific character of such due diligence might vary, it should be done according to the Know-Your-Business-Partner-principle.

    However, (i) the company should in any case inform itself about the third party's qualifications, including its possible relations with public officials, (ii) the role and the terms under which a third party operates should be clearly expressed in contractual terms, and (iii) the company should have the possibility to control its contractual engagement with third parties. This approach includes trainings, the stipulation of a right to audit, and the requirement that compliance certificates be provided. In addition, the third parties should adhere to similar compliance standards.
  • Confidential reporting of misconduct and internal investigation: A compliance program should include mechanisms to enable employees to report suspected or actual misconduct on a confidential basis and without fear of reprisals. To that end, companies may, for example, install anonymous hotlines or employ ombudsmen. In case of a reported allegation of suspicion, companies should possess an efficient, reliable and properly funded process geared at investigating the allegation. Furthermore, the company should ensure the proper documentation of its response to the al-legation, including any mediation or disciplinary measures it may apply.
  • Continuous improvement: The compliance program is subject to a constant process of improvement. As business changes over time, a company's compliance program must reflect such changes and should adapt to them promptly.
  • Pre-Acquisition Due diligence and Post-Acquisition Integration: A company needs to perform a proper due diligence prior to a merger or acquisition. Companies engaging in a due diligence should know about any possible FCPA exposure and accordingly apply a solid risk analysis. The Guide signals that action against the successor company might only hap-pen under limited circumstances, for example in cases "where the successor company directly participated in the violations or failed to stop the misconduct from continuing after the acquisition".

2. What does "anything of value" mean?

The FCPA prohibits paying, offering, promising to pay or authorizing to pay or offer money or "anything of value" to a foreign official. The Guide notes that there are no de-minimis threshold amounts for corrupt payments or gifts. It acknowledges, how-ever, that the FCPA permits reasonable gifts, travel and entertainment where there is a bona fide business purpose. Facilitation payments are only permitted under restricted circumstances. In addition, small gifts or tokens of esteem or gratitude are not prohibited. The company may thus, for example, pay for the airfare of a public official who is travelling to inspect a company's facility for a legitimate business purpose.

3. Who is a foreign public official?

The Guide's discussion of who constitutes a "foreign official" focuses principally on the meaning of the term "instrumentality" of a foreign government. The Guide notes that whether a company is an "instrumentality" is "fact-specific" and depends on the entity's ownership or control, respectively its status and function. A foreign government ownership stake of 50% or more is a good indicator; however, even an entity with a lower rate of foreign government ownership may be deemed an "instrumentality" of a foreign government.

4. Facilitation Payments – a narrow exception

The Guide reiterates the narrow facilitation payment exception under the FCPA and acknowledges that the facilitation payments exception only applies to "routine governmental action" that involves non-discretionary acts.

5. Summary

The Guide provides a comprehensive overview of the FCPA statute and offers important insights into the U.S. authorities' regulatory approach to vigorously enforcing the FCPA. The standards for a compliance program outlined in the Guide are similar to the ones issued along with the UK Bribery Act 2010 and thus constitute major incentives for companies to consider re-evaluating their current compliance programs. As a result, an efficient compliance program should enable the company to mitigate its exposure to FCPA liability.

The Guide makes it clear that in accordance with the US Sentencing Guidelines, which govern the sentencing of companies, an effective compliance program is regarded as part of an organization's remediation. Having an effective compliance program may thus lead to a reduction in the organization's culpability for violations, if the company did not unreasonably delay reporting the offence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions