FCPA Report Continues Facilitation Payment Conversation with Manatt Partner
"Designing a Facilitation Payments Policy to Maximize Liability and Retain Flexibility (Part Two of Two)"The FCPA Report
August 8, 2012 - The FCPA Report interviewed Manatt's Jacqueline Wolff, co-chair of the firm's Corporate Investigations & White Collar Defense Practice, for a two-part article focusing on facilitation payments, which are given to foreign officials to expedite the execution of a ministerial process.
In part two of the article, The FCPA Report explains that the Foreign Corrupt Practices Act prohibits bribes to foreign officials, but allows an exception for facilitation payments. However, companies have been moving towards prohibiting facilitation payments outright, due in part to the prohibition of facilitation payments under local laws and the difficultly of distinguishing these payments from an illegal bribe.
Industry insiders recommend that companies should have a policy with flexibility, which will allow employees to make these types of payments in exceptional circumstances.
Wolff noted that the threat of bodily harm can justify an exception to an otherwise overarching prohibition on facilitation payments.
"Most policies tend to have the ban along with a provision that if an employee finds that such a payment is necessary for the safety of an employee or the health of an employee, the compliance officer should be contacted immediately in order to, perhaps, get a waiver of the ban, given the particular circumstances," Wolff said. "I think you'll this happen in countries where there really is a threat to someone's health or safety. You certainly don't want to have a situation precluding police services to which you are entitled but that are being withheld until some sort of facilitation payment is made where someone's life is in danger. In a situation like that, you don't want your employees worrying that if they make such a payment they will be violating policy."
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