Will 'The Galt' go to jail?

[ThaiHome]

TH and others,

 

... The FCPA criminalizes bribery of foreign government officials. ...

 

"to obtain or retain business " Link

 

You need to finish the sentence as included in the actual law.

 

I believe Wade is suing as an individual, not in the name of his business, which I don’t think is under the jurisdiction of the FCPA anyway assuming this is an entirely Thai company in which his Thai wife is the majority stockholder. The FCPA only applies to companies and its employees that have a principal place of business in the United States or organized under U.S. law.

Besides not having jurisdiction, the FCPA requires that there be a business reason to obtain, retain, or get an unfair advantage over competitors to bribe the officials. Again, this case has none of these reasons. Wade is trying to clear his personal reputation from what he thinks was untrue accusations.

 

This is no different then paying the Thai cop 200 baht, which gets brought up every year when our lawyers come out to do the FCPA training. The answer is always the same. The FCPA does not apply as you are paying a bribe as in individual and there is no business advantage gained by doing so.

 

I should also add, that I do not think or have evidence that Wade is bribing anyone.

TH

[Gadfly]

TH,

 

Sorry - you are fundamentally wrong. The FCPA applies to US nationals, and if they bribe a foreign official or offer to bribe a foreign official, they have committed a federal felony. Don't believe me - go to this Link on the FCPA, where you will find the following: judges, court clerks and others in the judicial system are "foreign officials" under the US Foreign Corrupt Practices Act.

 

If a US national bribes or tries to bribe a judge, they are seeking an advantage through corrupt means. This is a no brainer.

 

It's also a federal crime, and if its brought to the attention of the U.S. Department of Justice - say, the Asst. US Attorney attached to the US Embassy - they will will investigate and prosecute if there is evidence that a bribe was paid or offered. 5 years per offense.

 

Don't believe me, give the AUSA (Asst. US Atty) a call and discuss it, and give us all a report. And just to verify, provide his name (because I certainly can verify). They know about this because it's all over the net.

 

I don't know what happened here. But there are posts here and elsewhere where others (not me) have claimed that activity that constitutes a FCPA violation has happened. You don't think this hasn't been noticed? It has. It's not rocket science to find this stuff.

 

Will their be a prosecution? Not a clue. But the best, and really only test, will happen when one of the participants in this little drama flies back into the US Now, imagine waiting in line at LAX wondering if you will: (a) catching your next flight or picking up your rental car or ( cuffed and taken into custody with your passport confiscated until trial. That is the current situation. And that is why this little drama between two Farangs is so incredibly foolish and dangerous.

[buffalo_bill]

But only if they think somebody bribed somebody or tried to , is that the case ? I cannot imagine that the Great United States of America waste any time on this bullshit .

[acockasian]

=They know about this because it's all over the net=

 

Indeed, there are people from the Embassy who read and post on this board.

[ozpharlap]

Dear Gadfly,

 

I read your link and note the following excerpt from it as follows:

 

"In any country, most citizens are powerless in the face of judicial corruption. Foreign investors, too, may feel threatened and victimized, and tempted to join the corrupt practices. But judges, court clerks and others in the judicial system are "foreign officials" under the U.S. Foreign Corrupt Practices Act. Bribing them can violate U.S. law and certainly violates local law. That means there are plenty of reasons to raise compliance standards in places where judicial corruption is prevalent"

 

The bold italics were put in by me, the bold italized portion still gives rise to some uncertainty as to who the legislation is directed at. It still may be the case that Thaihome is still correct, that the triggers under the legislation apply to business entities only.

 

Has anyone got a link to the actual legislation to put this issue to rest?

 

[ozpharlap]

Alright, I have taken time out of my busy schedule (i.e., the cricket is now on TV - Australia v. West Indies) in a hope to put this matter to rest.

 

FOREIGN CORRUPT PRACTICES ACT - ANTIBRIBERY PROVISIONS

 

BASIC PROHIBITION

 

The FCPA makes it unlawful to bribe foreign government officials to obtain or retain business. With respect to the basic prohibition, there are five elements which must be met to constitute a violation of the Act:

 

A. Who -- The FCPA potentially applies to any individual, firm, officer, director, employee, or agent of a firm and any stockholder acting on behalf of a firm. Individuals and firms may also be penalized if they order, authorize, or assist someone else to violate the antibribery provisions or if they conspire to violate those provisions.

 

Under the FCPA, U.S. jurisdiction over corrupt payments to foreign officials depends upon whether the violator is an "issuer," a &"domestic concern," or a foreign national or business.

 

An "issuer" is a corporation that has issued securities that have been registered in the United States or who is required to file periodic reports with the SEC. A "domestic concern" is any individual who is a citizen, national, or resident of the United States, or any corporation, partnership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship which has its principal place of business in the United States, or which is organized under the laws of a State of the United States, or a territory, possession, or commonwealth of the United States.

 

Issuers and domestic concerns may be held liable under the FCPA under either territorial or nationality jurisdiction principles. For acts taken within the territory of the United States, issuers and domestic concerns are liable if they take an act in furtherance of a corrupt payment to a foreign official using the U.S. mails or other means or instrumentalities of interstate commerce. Such means or instrumentalities include telephone calls, facsimile transmissions, wire transfers, and interstate or international travel. In addition, issuers and domestic concerns may be held liable for any act in furtherance of a corrupt payment taken outside the United States. Thus, a U.S. company or national may be held liable for a corrupt payment authorized by employees or agents operating entirely outside the United States, using money from foreign bank accounts, and without any involvement by personnel located within the United States.

 

Prior to 1998, foreign companies, with the exception of those who qualified as "issuers," and foreign nationals were not covered by the FCPA. The 1998 amendments expanded the FCPA to assert territorial jurisdiction over foreign companies and nationals. A foreign company or person is now subject to the FCPA if it causes, directly or through agents, an act in furtherance of the corrupt payment to take place within the territory of the United States. There is, however, no requirement that such act make use of the U.S. mails or other means or instrumentalities of interstate commerce.

 

Finally, U.S. parent corporations may be held liable for the acts of foreign subsidiaries where they authorized, directed, or controlled the activity in question, as can U.S. citizens or residents, themselves "domestic concerns," who were employed by or acting on behalf of such foreign-incorporated subsidiaries.

 

B. Corrupt intent -- The person making or authorizing the payment must have a corrupt intent, and the payment must be intended to induce the recipient to misuse his official position to direct business wrongfully to the payer or to any other person. You should note that the FCPA does not require that a corrupt act succeed in its purpose. The offer or promise of a corrupt payment can constitute a violation of the statute. The FCPA prohibits any corrupt payment intended to influence any act or decision of a foreign official in his or her official capacity, to induce the official to do or omit to do any act in violation of his or her lawful duty, to obtain any improper advantage, or to induce a foreign official to use his or her influence improperly to affect or influence any act or decision.

 

C. Payment -- The FCPA prohibits paying, offering, promising to pay (or authorizing to pay or offer) money or anything of value.

 

D. Recipient -- The prohibition extends only to corrupt payments to a foreign official, a foreign political party or party official, or any candidate for foreign political office. A "foreign official" means any officer or employee of a foreign government, a public international organization, or any department or agency thereof, or any person acting in an official capacity. You should consider utilizing the Department of Justice's Foreign Corrupt Practices Act Opinion Procedure for particular questions as to the definition of a "foreign official," such as whether a member of a royal family, a member of a legislative body, or an official of a state-owned business enterprise would be considered a "foreign official."

 

The FCPA applies to payments to any public official, regardless of rank or position. The FCPA focuses on the purpose of the payment instead of the particular duties of the official receiving the payment, offer, or promise of payment, and there are exceptions to the antibribery provision for "facilitating payments for routine governmental action" (see below).

 

E. Business Purpose Test -- The FCPA prohibits payments made in order to assist the firm in obtaining or retaining business for or with, or directing business to, any person. The Department of Justice interprets "obtaining or retaining business" broadly, such that the term encompasses more than the mere award or renewal of a contract. It should be noted that the business to be obtained or retained does not need to be with a foreign government or foreign government instrumentality.

 

 

From my reading it would appear that an individual may fall foul of the legislation if, and only if, the five elements above are founded.

 

Back to the cricket ...

[ThaiHome]

So you are saying if I go to a foreign country and get thrown in jail and pay a bribe to get out I have broken a US federal law? I don’t think so. I think the FCPA included a business test just so those situations would not be covered.

 

You have so far not addressed my argument that there is a business reason for either party to bribe a judge in this case. Please tell us what you think that is.

TH

[CTO]

Odd it applies only to business, surely should cover non business. In this case both bloke's in business, the need to link to business seemed a very broad definition.

[cavanami]

So you are saying if I go to a foreign country and get thrown in jail and pay a bribe to get out I have broken a US federal law? I don’t think so. I think the FCPA included a business test just so those situations would not be covered.

 

You have so far not addressed my argument that there is a business reason for either party to bribe a judge in this case. Please tell us what you think that is.

TH

Both persons have their own business. If they were to go to jail, difficult to operate a business, so maybe some tea money is required

[Gadfly]

Odd it applies only to business, surely should cover non business. In this case both bloke's in business,

 

Agree. I haven't seen anything from TH that backs up his claim that the FCPA only applies to businesses. If you check any of the websites on the FCPA, there are very clear that it applies to U.S. nationals - full stop.

 

More fundamentally, I don't understand what this claim about the FCPA only applying to "businesses" means. The law specifally refers to U.S. citizens. Check any website on this. If a U.S. citizen pays or offers to pay a bribe to gain an advantage, he's violated the FCPA.

 

Moreover, here we have a property developer pursuing claims against a web site operator. How is this not about business??

 

I don't know if there any shenagins going on here, but there have been enough claims (by others about this) that it has definitely caught the attention of the DOJ. This is why I think Farangs that try to settle their disputes between each other are playing with fire when they take, let's call it "aggressive" steps, in employing the Thai legal system.

 

And then of course there is there is the very real danger of local vested interests using this to extract "rent" from the two Farangs duking it on in their turf.

 

Two kids up to their knees in gasoline playing with matches. Neither has much to gain with this nonsense, but both have plenty to lose.