With the December 2023 enactment of the Foreign Extortion Prevention Act ("FEPA"), the United States' anti-bribery laws now penalize the "demand-side" of foreign bribery. While, for decades, the Foreign Corrupt Practices Act ("FCPA") has targeted the "supply-side" of foreign bribery – that is, offering, promising, authorizing or actually making bribes to foreign officials – FEPA prohibits the solicitation (demand for), acceptance or receipt of bribes by foreign officials from U.S. issuers and domestic concerns (individuals and entities) or any person while in the territory of the United States.
"Demand-side" bribery was the focus of a study by the Organisation for Economic Co-operation and Development (OECD) in 2018, which generally found prosecution of "demand-side" bribery in only one out of every five "supply-side" cases (link here). In 2021, the OECD issued recommendations to combat "demand-side" bribery (link here), encouraging awareness of risks, training, cooperation and reporting, among other proactive measures. FEPA is the U.S. codification of that effort. With FEPA, U.S. federal prosecutors now have an additional tool to charge foreign officials and third parties for bribery schemes within the reach of U.S. jurisdiction, whereas they previously relied heavily on money-laundering statutes, when applicable, to capture the "demand-side" of foreign bribery.
As a result of FEPA, the U.S. joins other countries, such as France, Germany, Mexico, Spain and the United Kingdom, that prohibit "demand-side" bribery. The table below surveys the anti-bribery landscape across these jurisdictions after FEPA's enactment, focusing on offenses relating to "supply-side" and "demand-side." The chart also compares the requirements and/or benefits of implementing a compliance program and maintaining accurate corporate books and records.
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Anti-Bribery Provision |
Compliance Program |
Books and Records |
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Demand-Side |
Supply-Side |
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U.S. |
Yes. FEPA targets conduct by which a foreign official corruptly demands, seeks, receives, accepts or agrees to receive or accept, directly or indirectly, anything of value. | Yes. The FCPA targets corruptly offering, paying, promising to pay, authorizing the payment of any money or anything of value to a foreign official. |
Issuers are required to devise and maintain a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed, and assets are accessed and accounted for in accordance with management's authorization. Compliance programs are considered and evaluated by the U.S. Department of Justice and U.S. Securities and Exchange Commission in making enforcement decisions. |
Issuers are required to make and keep books, records and accounts which, in reasonable detail, accurately and fairly reflect the transactions and disposition of assets of the issuer. |
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France |
Yes. Under Article 432-11 of the French Criminal Code, it is an offense for a person in a position of public authority, entrusted with a public service mission or invested with a public elective mandate, to seek or to accept, without right, direct or indirect offers, gifts, donations, advantages or promises of anything of value, for himself or for another person. Article 432-10 of the French Criminal Code makes it an offense for a person acting on behalf of a public authority or entrusted with a public service mission to receive, demand or order to be paid, by way of duties or contributions, taxes or public levies, a sum that he or she knows is not due or which exceeds what is due. |
Yes. Under Article 433-1 of the French Criminal Code, it is an offense to propose without right, at any time, directly or indirectly, promises, gifts, presents or advantages of any kind to a person holding public authority, entrusted with a public service mission or invested with a public elective mandate, for himself or for others. | Law No. 2016-1691, known as the Sapin II Law, imposes anti-corruption compliance obligations on large corporations. The corporations that reach the thresholds defined by the Sapin II Law must establish an anti-corruption program that includes a corruption risk mapping system, a code of conduct, risk assessment procedures for clients and third parties, a specific training program for employees, a whistleblowing mechanism and a disciplinary procedure for ethics violations. | The French Commercial Code imposes requirements relating to books and records on companies. The anti-corruption program required under the Sapin II Law must include internal or external accounting controls. The purpose of such controls is to ensure that books, records and accounts are not used to conceal corruption or influence peddling. |
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Germany |
Yes. Sections 331 and 332 of the German Criminal Code make it an offense for German and European officials and judges to demand or accept benefits or bribes. Bribes are defined as benefits in consideration for unlawful acts of public service. Section 335a para. 1 of the German Criminal Code extends the scope of accepting benefits to members of a foreign or an international court and of taking bribes additionally to other officials of foreign states and international organizations. The provisions are only applicable if the offense is committed in Germany (i.e., both parties are located in Germany at the time of the offense) or by a German citizen (e.g., a German judge of an international court). |
Yes. Sections 333 and 334 of the German Criminal Code make it an offense to grant benefits and to bribe German and European officials and judges. Both offenses can be committed by offering, promising or granting a benefit / bribe. Sec. 335a para. 1 of the German Criminal Code extends the scope of granting benefits to offenses towards members of a foreign or an international court and of bribery additionally to other officials of foreign states and international organizations. The provisions are only applicable if the offense is committed in Germany or by a German citizen. |
German law does not require anti-corruption compliance programs. Nevertheless, compliance measures may be taken into account by German courts when assessing fines to be imposed for bribery offenses. | The German Commercial Code requires every booking to be documented. |
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Mexico |
Yes. Article 52 of Mexico's General Law of Administrative Liabilities targets conduct by which a public officer demands, accepts, obtains or intends to obtain, by himself or through third parties, by reason of his functions, any benefit not included in his remuneration as a public officer. | Yes. Article 66 of Mexico's General Law of Administrative Liabilities targets conduct by which an individual promises, offers or delivers any undue benefit to one or more public servants, directly or through third parties. | Compliance programs may be considered in determining certain liabilities under Mexico's General Law of Administrative Liability. | Mexico's Commercial Code and federal tax laws establish obligations for merchants, whether individuals or legal entities, to maintain an adequate accounting system. |
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Spain |
Yes. Articles 419-423 of the Spanish Criminal Code target conduct by which authorities or public officials receive or request a gift, favor or remuneration of any kind that may be offered to them in consideration of their position or function, or in exchange for performing an act proper or contrary to their duties, or for not performing or unjustifiably delaying an act they should perform. | Yes. Article 424 of the Spanish Criminal Code targets offering or giving a gift or any other kind of consideration to an authority, public official or person involved in the exercise of a public function in consideration of their position or function, or in exchange for performing an act proper or contrary to their duties, or for not performing or unjustifiably delaying an act they should perform. |
Spain's Whistleblowers Law, Act 2/2023, requires public sector entities, financial entities and private individuals or companies that employ fifty or more workers to have an internal information system. Under the Spanish Criminal Code, entities may be exempt from criminal liability if, among other requirements, prior to the commission of the criminal offense, the legal entity had adopted, and effectively implemented, a compliance program. |
Spanish laws require companies to maintain books, records and ordered accounts which are appropriate to the activity of the company and allow a follow-up of all its operations. |
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U.K. |
Yes. It is an offense under the U.K. Bribery Act 2010 for a person to request, agree to receive or accept a financial or other advantage (i) intending that a relevant function or activity should be performed improperly, either by them or another person, (ii) where to do so, in itself, would be the improper performance of a relevant function or activity, (iii) as a reward for carrying out a relevant function or activity improperly or (iv) where, in anticipation or consequence of doing so, they (or another person at their request or with their assent or acquiescence) perform a relevant function or activity improperly. The offense is not restricted to foreign officials. The offense is committed if any act or omission which forms part of the offense takes place in the U.K. or is done/made outside the U.K. by a person that has a "close connection" to the U.K. (e.g., that person is a UK national). |
Yes. It is an offense under the U.K. Bribery Act 2010 to offer, promise or give a financial or other advantage intending to induce or reward a person to perform a relevant function or activity improperly. The U.K. Bribery Act 2010 also makes it an offense to intend to influence a person acting in their capacity as a foreign official by offering, promising or giving a financial or other advantage to obtain or retain business or a business advantage. These offenses are committed if any act or omission which forms part of an offense takes place in the U.K. or is done/made outside the U.K. by a person that has a "close connection" to the U.K.. |
The U.K. Bribery Act 2010 does not require corporations to implement a compliance program but implementing "adequate procedures" designed to prevent bribery provides a defense to the strict liability corporate offense of failure to prevent bribery, which is committed where an "associated person" bribes another person (including a foreign official) intending to obtain or retain business or a business advantage for that corporation. If a corporation is incorporated in the U.K. or carries on a business or part of a business in the U.K. (wherever it may be incorporated), then that corporation will fall within the scope of the offense, irrespective of where in the world the bribery took place. |
The U.K. Companies Act 2006 includes requirements relating to a company's books and records. |
FEPA's enactment is a good reminder to companies within the reach of U.S. laws to revisit their compliance programs and ensure that program components, including risk assessments, policies, training, third-party management and internal reporting, address the "demand-side" risks of international bribery.
Companies will want to develop a uniform and cohesive approach to dealing with conduct by foreign officials made illegal under FEPA. And companies operating in multiple jurisdictions will want to understand the differences across and overlap among jurisdictions in carrying out the same exercise.
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