Jonathan Herman

ICAR Advocacy Letter: Defending the FCPA

Jonathan Herman

Dear Congressman,

On behalf of the International Corporate Accountability Roundtable (“ICAR”), a coalition of human rights groups including Amnesty International, Global Witness, Human Rights Watch, Human Rights First and EarthRights International, we submit this letter to indicate our strong defense against efforts to amend the Foreign Corrupt Practices Act (“FCPA”).

The FCPA provides a strong and effective mechanism to prosecute corrupt payments made to foreign officials.  Congress initially enacted the FCPA to bring such practices to a halt and to restore public confidence in the integrity of the American business system.  Thus, the anti-bribery provisions of the FCPA make it unlawful for a U.S.  person and certain foreign issuers to make corrupt payments to a foreign official for the purpose of obtaining or retaining business for or with, or directing business to, any person.   Since implementing legislation enacted in 1998, the FCPA also applies to foreign firms and persons who take any act in furtherance of such a corrupt payment while in the US.

Some contend that the FCPA hurts American business interests, however an analysis of the top FCPA settlements reveals otherwise.  Of the top ten settlements in terms of settlement amount, only two were against U.S. firms.  Importantly, the FCPA provides a procedure by which companies can request an opinion by the Justice Department regarding whether proposed business conduct violates any provisions of the FCPA.   This provides companies with a prospective tool to anticipate and address any violations that may occur.

Ultimately, the fight against corruption is also a fight to ensure the promotion and protection of human rights.  United Nations Treaty bodies and special procedures have noted the link between corruption and human rights, stating that where corruption is widespread, human rights are subject to abuse.[1]

We understand that the U.S. Chamber of Commerce is leading an effort to introduce a number of amendments to the FCPA.  We believe that such amendments would significantly undermine the FCPA as a tool to curb corruption, with the concomitant effect of bringing uncertainty and unfairness into the business environment and impacting greatly democratic principles and human rights in countries around the world.

We therefore urge you to stand with us in defense of the FCPA.  We commit to working actively with your offices towards these ends, and thank you again for your commitment to this important issue.

Yours sincerely,

Amol Mehra

Coordinator, International Corporate Accountability Roundtable

 

On behalf of:

 

Amnesty International

Global Witness

Human Rights Watch

Human Rights First

EarthRights International

 

[1] See “Corruption and Human Rights: Making the Connection”, and page 23 stating in FN 33: “for example, statements by the Committee on Economic, Social and Cultural Rights that “states face serious problems of corruption, which have negative effects on the full exercise of rights covered by the Covenant [ICESCR]” E/C.12/1/ADD.91 (CESCR, 2003, para. 12); and by the Committee on the Rights of the Child that it “remains concerned at the negative impact corruption may have on the allocation of already limited resources to effectively improve the promotion and protection of children’s rights, including their right to education and health” CRC/C/COG/CO/1 para 14. See also the statement by the UN Special Rapporteur on independence of judges and lawyers in E/CN.4/2006/52/Add.4. para 96.”