The Foreign Corrupt Practices Act and Whistleblowing:
The FCPA prohibits thousands of corporations, both U.S. and international, from paying bribes to foreign officials and mandates proper financial record keeping.
In a major breakthrough for international whistleblowers, on July 21, 2010 President Obama signed legislation that permits whistleblowers, including foreign nationals, to apply for monetary rewards based on reporting bribery prohibited under the Foreign Corrupt Practices Act (FCPA). The Dodd-Frank Wall Street Reform and Consumer Protection Act mandates that the U.S. Securities Exchange Commission (SEC) pay whistleblowers monetary rewards if they provide the U.S. government with information that leads to the successful enforcement of the FCPA. The act is applicable even if bribes are paid in a foreign country and the whistleblower is a foreign national.
Those qualified to receive a monetary reward under the FCPA include “whistleblowers” that “voluntarily” submit “original information” that leads to the successful enforcement of the violation and collection of “monetary sanctions.” Under the Dodd-Frank Act whistleblowers can submit claims “anonymously.” The Dodd-Frank Act disqualifies some individuals from obtaining a whistleblower reward. The U.S. government has successfully prosecuted many foreign nationals and foreign corporations under the FCPA. Two of the largest sanctions imposed under the FCPA were:
- Siemens, a German-based manufacturer listed on the New York Stock Exchange, engaged in the systemic practice of paying bribes to foreign government officials to obtain business. Siemens “paid $1.6 billion to resolve charges with the SEC, U.S. Department of Justice, and Office of the Prosecutor General in Munich.”
- Italian companies ENI, S.p.A., and S.p.A.’s former Dutch subsidiary Snamprogetti Netherlands, B.V. were charged for their participation in a four-company joint venture that bribed Nigerian government officials to obtain construction contracts. ENI and Snamprogetti paid jointly $5 million in disgorgement to the SEC and Snamprogetti also paid a criminal penalty of 0 million to the Department of Justice (DOJ). For their connection in the bribery scheme, the four companies of the joint venture paid combined sanctions of $28 billion.
- For additional information on FCPA cases, click here.
The National Whistleblower Center has released a report analyzing data from Foreign Corrupt Practice Act (“FCPA”) cases since the law was passed in 1977, including several cases decided in 2018. Read the report here, or in PDF format here.
In addition to the FCPA, other U.S. whistleblower laws may also be applicable internationally, including for the following actions:
- U.S. nationals holding undisclosed illegal foreign bank accounts
- U.S. government money misappropriated/mismanaged by foreign entities
- U.S. corporations directly violating U.S law while conducting business outside of the U.S.
Obtain Legal Assistance
Individuals who have information concerning the payment of bribes to foreign officials in ANY nation are strongly advised to seek legal representation to determine whether they may qualify for a reward. Those who wish to confidentially report violations of the FCPA may fill out an intake form to contact the National Whistleblowers Legal Defense & Education Fund (NWLDEF)*. Access the confidential reporting form here. To learn more about NWC’s Legal Assistance Program and how we assist whistleblowers, please visit our Find an Attorney page here.
*The Fund is a public interest law firm that can provide legal representation or an attorney referral in appropriate situations. All communications with the Fund are deemed attorney-client privileged to the fullest extent of U.S. law (NOTE: All requests must be sent in English).
NWC International Program
The National Whistleblower Center regularly works with government officials and members of legislatures throughout the world, as well as others including journalists, free speech advocates, and lawyers, educating them about the value of whistleblower protections. As part of this goal, NWC staff members have conducted trainings, both in the U.S. and abroad, with delegations from countries including Armenia, China, Croatia, Czech Republic, Georgia, Hungary, India, Israel, Japan, Kenya, Kyrgyzstan, Moldova, Montenegro, the Philippines, South Africa, South Korea, Sri Lanka, the United Kingdom, and many others.
The last few years, members of the NWC staff who are experts on whistleblowing have travelled to all parts of the world to advocate for whistleblower rights. For example, trips abroad bookended a very busy 2018 for NWC. In January NWC Executive Director Stephen M. Kohn led a whistleblower workshop in Namanga, Kenya, for individuals from both Kenya and Tanzania who work on wildlife conservation and anti-trafficking initiatives. In December, he travelled to Lima, Peru, to present the keynote address at a conference focused on integrity in governance. During December as well, NWC President Michael D. Kohn addressed an anti-corruption and transparency conference in Korea.
Moreover, each year multiple separate delegations visit Washington, D.C. to learn from NWC experts about whistleblowing. For example, in 2018 separate delegations from Armenia, the country of Georgia, and groups from South Asian and Latin American countries came to the NWC to learn about whistleblowing, qui tam laws, and government accountability. These delegations included government officials in the judiciary or otherwise involved in the court system, and therefore are directly involved in the drafting and implementation of their whistleblower legal framework.
In 2019 and beyond, the NWC anticipates working with delegations, which are often facilitated by the International Visitor Leadership Program (IVLP), an initiative of the U.S. Department of State. Visitors are hosted by the NWC and provided a copy of The New Whistleblower’s Handbook, written by NWC Executive Director Stephen M. Kohn. The book is the how-to guide on all-things whistleblower, and considered a must-read for those who want to understand why empowering whistleblowers is the foundation of any well-functioning, accountable, and transparent government.
For more information about NWC’s international training program, please contact us.
Model Whistleblower Law
The expert attorneys of the National Whistleblower Center have worked with several other country’s legislatures and policymakers, as well as with non-governmental organizations, to draft language for whistleblower legislation that will both fully protect those who blow the whistle and reward them for their bravery in coming forward with high-value information. To assist other countries in drafting whistleblower legislation, the NWC has created a model whistleblower law, which can be accessed here. Additionally, the NWC strongly suggests that legislators and their staff who are interested in best practices legislation review both the Wildlife Conservation and Anti-Trafficking Act’s whistleblower provision, available here, as well as the NWC’s brief on best practices in crafting effective whistleblower legislation, available here, or in PDF version here.
Finally, NWC’s expert attorneys may be able to assist you directly. For any other questions or concerns, please contact NWC at firstname.lastname@example.org.
Political asylum protections for whistleblowers are not limited to those already inside U.S. borders, just as U.S. whistleblower protection and reward laws do not apply only to U.S. citizens. Instead, U.S. law has expansive whistleblower protections and rewards, including for whistleblowers who are outside the U.S. and who require political asylum protections because of their brave actions in coming forward with information about corruption, fraud, and other crimes. As Stephen M. Kohn, Executive Director of the National Whistleblower Center and leading whistleblower lawyer, wrote in his book The New Whistleblower’s Handbook, “this is a recognition that citizens outside the U.S. who report fraud and corruption within their own countries can face life-threatening retaliation.” Read more about political asylum for whistleblowers here.
Whistleblower Cybersecurity Best Practices When Reporting Fraud Electronically
Whistleblowers around the world who report their information electronically must be aware of cybersecurity best practices. Whistleblowers often face retaliation or their claims are dismissed and rejected because of mistakes made in in terms of these cybersecurity and electronic reporting best practices. Read the NWC’s best practices page here, and download the PDF here.
Whistleblower protection is now recognized as part of international law. In 2003, the United Nations adopted the Convention Against Corruption. This convention was subsequently signed by 140 nations and formally ratified, accepted, approved, or acceded by 137 nations, including the United States. Article 32 and Article 33 of the UN Convention endorse protection for whistleblowers.
In 1999, the Council of Europe ratified its Civil Law Convention On Corruption. This Convention is a binding legal authority on most European governments. Article 9 of this Convention explicitly requires, as part of their internal domestic law, that European governments provide “appropriate protection” for employee whistleblowers. The Convention Explanatory Report calls upon states to “protect’ and “encourage” whistleblowing.
The material on this webpage may not reflect the most current legal developments. The content and interpretation of the law addressed herein is subject to revision. We disclaim all liability in respect to actions taken or not taken based on any or all the contents of this website. Before acting on any information or material in this web site, we strongly recommend you seek a qualified whistleblower attorney.
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