中国公司在美国以外仅用美元行贿会在FCPA下被处罚吗？「合规官对话检察官002」

中国公司在美国以外仅用美元不当支付会在FCPA下被处罚吗？

「合规官对话检察官002」

陈立彤、Sara Holzschuh

很多企业问：中国公司在美国以外仅用美元不当支付会在FCPA下被处罚吗？就这个问题大成Dentons上海办公室陈立彤律师与大成Dentons美国办公室的Sara Holzschuh律师做了深入交流。Sara Holzschuh是大成Dentons美国办公室合伙人、美国前联邦检察官。陈立彤律师是中国律师、美国纽约州律师、福特公司前亚太区合规总监；入选司法部“全国千名涉外律师人才名单”，钱伯斯2020亚太榜公司调查/反腐败领域受认可律师。陈立彤律师著有《商业贿赂风险管理》、《企业国际化进程中合规风险的爆发与防控》。

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以下是双方对话概要。因为对话是英文，我们在这里把原文原汁原味地在这里予以呈现。在上一期「合规官对话检察官」中，我们所提供的同样也是英文——有读者表示希望我们把对话翻译成中文，但我们认为做FCPA合规业务的必须要习惯用英文阅读法律、法规和案例，这样才能最大限度地减少信息损耗——所以我们在这里包括今后还会在本「合规官对话检察官」中继续用英文提供阅读材料。另外，本帖二条有中文写就的延伸阅读《中国也有长臂管辖！和美国FCPA比，哪个手更长呢？》，大家可以参考。

最后，我们还提醒大家一下，本文只供大家参考，不构成任何法律建议。如果您有任何问题，请联系[e-mail]

A quick question: was there any non-U.S. individual ever prosecuted under the FCPA just because he or she used US cash to bribe even on a non-U.S. territory?

It’s hard to think of a case where a prosecution was solely premised just on the use of US currency as the currency for a bribe as a basis for territorial jurisdiction over an individual (e.g. non-US person working for a non-US company that is not publicly traded on a US exchange, and no connection to the US in the bribe conduct other than US dollars in cash traded hands between the bribe payor and bribe recipient).  But it’s impossible either – we may do a bit more research though before we said it never happened but we think it hasn’t been tried and tested in court yet.  Typically there is going to be a second basis for jurisdiction under the FCPA when there is an individual prosecution - a US issuer, a US domestic concern, a US person, someone acting as an agent for one of those, or maybe more US territorial jurisdiction touchpoints than just cash (some of the conduct occurred while in the US, US email addresses, US banks, etc. were used).  

It would be an aggressive stance to use US currency for the bribe as the only jurisdictional basis, though it’s not expressly prohibited to do so.  Settlement documents and guidance materials suggest the US government believes it could bring a prosecution purely on that basis.  The risk is that courts would view it as an insufficient nexus to the US for purposes of extraterritorial application of US law.  Thus, the decision to prosecute only on that basis would be carefully considered by senior leadership at the DOJ before prosecutors risked creating bad precedent.  In the money laundering space, there have been some pretty aggressive actions with limited territorial jurisdiction over non-US payments though, so there is at least some tangential precedent suggesting this might be sufficient.

Settlements, especially administrative orders with the SEC, often do use it as one of the bases they assert for jurisdiction, which leads to the caution that it could be seen as a basis for prosecution the government might explore.  In those cases though, not only were US dollars used, but a US issuer or domestic concern (or its agent) is involved in the briery as a further jurisdictional basis.  For example, on September 12, 2018, the SEC announced a settled cease-and-desist proceeding against a multinational conglomerate for alleged violations of the FCPA’s anti-bribery, books-and-records, and internal controls provisions.  The company was alleged among other things to have made improper payments with respect to public housing officials in Azerbaijan to retain sales.  What makes this case stand out as aggressive in its charging theory is the Section 30A bribery charge relating to the conduct in Azerbaijan.  The only clear allegation of involvement by the parent in its Russian subsidiary’s alleged conduct is that the parent “failed to detect the conduct”—seemingly an inadequate internal controls theory, if that.  Further, there is a prominent allegation of U.S. jurisdictional nexus via the fact that the payments made on behalf of the Russian subsidiary “were [made] in U.S. dollar denominations and involved U.S. correspondent banks.”  To resolve the allegations, the company agreed to pay $13.9 million, consisting of nearly $10 million in disgorgement and prejudgment interest and a $4 million penalty.  DOJ closed its investigation in March 2018 without bringing its own enforcement action. 

To help gauge the territorial jurisdiction the US has weakly alleged in other settlements, in the recent Airbus NPA, the government declined to prosecute the bribery charges but said it had jurisdiction over them and could have prosecuted if they wanted to, despite very limited territorial jurisdiction - in that case, it wasn’t US dollars that were used for territorial jurisdiction, but it was very limited territorial connection with the US via a few emails while in the US and paying for a few folks to visit the US, which is probably a stronger jurisdictional basis than one foreign US currency transaction: 

The territorial jurisdiction alleged in the NPA was emails made while located in the US, and paying for public official travel to the US:

另，陈立彤律师正在写英文版的Bribery Risk Management in China，为了丰富本书的材料，「中国合规网」发起了下列调查，麻烦您花1分钟的时间参与一下，帮助我们帮助您，多谢！