Foreign official

Last updated

Foreign official or foreign public official refers to a person who acts in an official capacity for a foreign government. The term is chiefly used in connection with international conventions and national laws against corruption in international trade.

Contents

International law

Members of the Organization for Economic Cooperation and Development (OECD) agreed the OECD Anti-Bribery Convention in 1999 and this treaty has been ratified by 39 countries. [1] The document [2] defines a foreign public official as follows:

And expands the definition as such:

"Public function" includes any activity in the public interest, delegated by a foreign country, such as the performance of a task delegated by it in connection with public procurement.

A "public agency" is an entity constituted under public law to carry out specific tasks in the public interest.

A "public enterprise" is any enterprise, regardless of its legal form, over which a government, or governments, may, directly or indirectly, exercise a dominant influence. This is deemed to be the case, inter alia, when the government or governments hold the majority of the enterprise's subscribed capital, control the majority of votes attaching to shares issued by the enterprise or can appoint a majority of the members of the enterprise's administrative or managerial body or supervisory board.

The definition of a foreign official defined in the OECD agreement is now referenced in enforcement actions by the United States Department of Justice. [3]

National jurisdictions

US Department of Justice definition

According to the US Department of Justice, the term "foreign official" is defined as:

any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization.

[4]

The Foreign Corrupt Practices Act applies to US companies and foreign organisations or persons doing business within the borders of the United States. This definition also applies to issuers of publicly traded securities (companies traded on US stock exchanges and in other US markets). The intent of the law is to stop the bribing of foreign officials so that the actual providing of funds to foreign governments directly would not constitute a violation.

Risks of business with foreign officials

The process of recognising if an entity is doing business with an individual who would be considered a foreign official is not only necessary from a compliance perspective, but also necessary when evaluating the risks in a company's business model. This process can be very simple or may be quite complex depending on how many relationships an entity has in place. The process of identifying foreign officials is typically carried out by the comparisons of client or third-party lists with lists of foreign officials that contain the names and positions of such officials, as well as unique identifiers such as dates of birth, photos, and contact numbers.

The term foreign official should not be confused with the term "politically exposed person", as this term relates to the financial sector and its clients. The term "foreign official" relates to all industries. [5] [ failed verification ]

See also

Related Research Articles

<span class="mw-page-title-main">Bribery</span> Corrupt solicitation, acceptance, or transfer of value in exchange for official action

Bribery is the offering, giving, receiving, or soliciting of any item of value to influence the actions of an official, or other person, in charge of a public or legal duty and to incline the individual to act contrary to their duty and the known rules of honesty and integrity. With regard to governmental operations, essentially, bribery is "Corrupt solicitation, acceptance, or transfer of value in exchange for official action." Bung is British slang for a bribe.

<span class="mw-page-title-main">Due diligence</span> Standard of care before entering into a contract with another party

Due diligence is the investigation or exercise of care that a reasonable business or person is normally expected to take before entering into an agreement or contract with another party or an act with a certain standard of care.

<span class="mw-page-title-main">Foreign Corrupt Practices Act</span> United States federal law

The Foreign Corrupt Practices Act of 1977 (FCPA) is a United States federal law that prohibits U.S. citizens and entities from bribing foreign government officials to benefit their business interests.

The OECD Anti-Bribery Convention is an anti-corruption convention of the OECD that requires signatory countries to criminalize bribery of foreign public officials. The convention is a legally binding international agreement that focuses on the supply side of bribery by criminalizing acts of offering or giving bribes to foreign public officials by companies or individuals. Its goal is to create a level playing field in the international business environment.

<span class="mw-page-title-main">Corruption</span> Dishonest or fraudulent conduct by those in power

Corruption is a form of dishonesty or a criminal offense which is undertaken by a person or an organization which is entrusted in a position of authority, in order to acquire illicit benefits or abuse power for one's personal gain. Corruption may involve many activities which include bribery, influence peddling and embezzlement and it may also involve practices which are legal in many countries. Political corruption occurs when an office-holder or other governmental employee acts with an official capacity for personal gain. Corruption is most common in kleptocracies, oligarchies, narco-states, and mafia states.

<span class="mw-page-title-main">Financial crime</span> Crime against property

Financial crime is crime committed against property, involving the unlawful conversion of the ownership of property to one's own personal use and benefit. Financial crimes may involve fraud ; theft; scams or confidence tricks; tax evasion; bribery; sedition; embezzlement; identity theft; money laundering; and forgery and counterfeiting, including the production of counterfeit money and consumer goods.

In financial regulation, a politically exposed person (PEP) is one who has been entrusted with a prominent public function. A PEP generally presents a higher risk for potential involvement in bribery and corruption by virtue of their position and the influence they may hold. The terms "politically exposed person" and senior foreign political figure are often used interchangeably, particularly in international forums.

A facilitating payment, facilitation payment, or grease payment is a payment to government employees to speed up an administrative process whose outcome is already determined. Although ethically questionable, it is not considered to be bribery according to the legislation of some states as well as in international anti-bribery conventions.

<span class="mw-page-title-main">International asset recovery</span> Any effort by governments to repatriate the proceeds of corruption hidden in foreign jurisdictions

International asset recovery is any effort by governments to repatriate the proceeds of corruption hidden in foreign jurisdictions. Such assets may include monies in bank accounts, real estate, vehicles, arts and artifacts, and precious metals. As defined under the United Nations Convention against Corruption, asset recovery refers to recovering the proceeds of corruption, rather than broader terms such as asset confiscation or asset forfeiture which refer to recovering the proceeds or instrumentalities of crime in general.

<span class="mw-page-title-main">Bribery Act 2010</span> United Kingdom legislation

The Bribery Act 2010 is an Act of the Parliament of the United Kingdom that covers the criminal law relating to bribery. Introduced to Parliament in the Queen's Speech in 2009 after several decades of reports and draft bills, the act received royal assent on 8 April 2010 following cross-party support. Initially scheduled to enter into force in April 2010, this was changed to 1 July 2011. The act repeals all previous statutory and common law provisions in relation to bribery, instead replacing them with the crimes of bribery, being bribed, the bribery of foreign public officials, and the failure of a commercial organisation to prevent bribery on its behalf.

Integrity management consulting is an emerging sector of consultancy that advises individuals and corporations on how to apply the highest ethical standards to every aspect of their business. Integrity within a corporate set-up is a holistic approach that makes prudent and ethical decisions in finance and other areas, including operations, marketing, human resources and manufacturing. At the core of integrity management is the belief that companies have a strong interest and responsibility to act with integrity at all times.

<span class="mw-page-title-main">Corruption in New Zealand</span> Institutional corruption in the country

This article discusses the responsibilities of the various agencies involved in combating corruption in New Zealand. New Zealand is regarded as having one of the lowest levels of corruption in the world.

The Corruption of Foreign Public Officials Act is an anti-corruption law in force in Canada. It was passed in 1999, ratifying the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and is often referred to as the Canadian equivalent to the United States' Foreign Corrupt Practices Act (FCPA).

The Nigeria Customs Service (NCS) is an independent customs service under the supervisory oversight of the Nigerian Ministry of Finance, responsible for the collection of customs revenue, Facilitation of both national and international trade, anti-smuggling and security activities.

<span class="mw-page-title-main">Travel Act</span>

The Travel Act or International Travel Act of 1961, 18 U.S.C. § 1952, is a Federal criminal statute which forbids the use of the U.S. mail, or interstate or foreign travel, for the purpose of engaging in certain specified criminal acts.

<span class="mw-page-title-main">Corruption in Sweden</span> Institutional corruption in the country

Corruption in Sweden has been defined as "the abuse of power" by Swedish National Council for Crime Prevention (Brå). By receiving bribes, bribe takers abuse their position of power, which is consistent with how the National Anti-Corruption Unit of the Swedish Prosecution Authority specifies the term. Although bribes and improper rewards are central in the definition of corruption in Sweden, corruption in the sense of "abuse of power" can also manifest itself in other crimes such as misuse of office, embezzlement, fraud and breach of trust against a principal.

<span class="mw-page-title-main">Corruption in Switzerland</span> Institutional corruption in the country

Corruption in Switzerland describes the prevention and occurrence of corruption in Switzerland.

<span class="mw-page-title-main">Corruption in Georgia</span> Institutional corruption in the country

Corruption in Georgia had been an issue in the post-Soviet decades. Before the 2003 Rose Revolution, according to Foreign Policy, Georgia was among the most corrupt nations in Eurasia. The level of corruption abated dramatically, however, after the revolution. In 2010, Transparency International (TI) said that Georgia was "the best corruption-buster in the world." While low-level corruption had earlier been largely eliminated, Transparency International Georgia since 2020 has also documented dozens of cases of high-level corruption that remain to be prosecuted.

ISO 37001Anti-bribery management systems - Requirements with guidance for use, is a management system standard published by International Organization for Standardization (ISO) in 2016. As the title suggests, this standard sets out the requirements for the establishment, implementation, operation, maintenance, and continual improvement of an anti-bribery management system (ABMS). It also provides guidance on the actions and approaches organizations can take to adhere to the requirements of this standard.

Anti-corruption comprises activities that oppose or inhibit corruption. Just as corruption takes many forms, anti-corruption efforts vary in scope and in strategy. A general distinction between preventive and reactive measures is sometimes drawn. In such framework, investigative authorities and their attempts to unveil corrupt practices would be considered reactive, while education on the negative impact of corruption, or firm-internal compliance programs are classified as the former.

References

  1. Russia - OECD Anti-Bribery Convention, OECD
  2. CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL BUSINESS TRANSACTIONS and Related Documents, OECD
  3. "'Majority' Report - The FCPA Blog - The FCPA Blog". 15 March 2011.
  4. "Archived copy". Archived from the original on 2009-09-01. Retrieved 2009-10-09.{{cite web}}: CS1 maint: archived copy as title (link)
  5. "Peps - provide protection from corrupt politically exposed persons (Pep) - WorldCompliance". Archived from the original on 2010-05-29. Retrieved 2009-10-09.