By Abdulwahab Abdulah
United States Securities and Exchange Commission, SEC, has agreed to consider a request to establish a process for payment of some US Foreign Corrupt Practices Act, FCPA, civil penalty and giving up of proceeds to or for the benefit of victimised foreign government agency or the citizens of the affected foreign country like Nigeria.

In a letter dated 25 April 2012, and signed by Robert S. Khuzami, Director SEC, to a Nigeria-based non-governmental organisation, Socio-Economic Rights and Accountability Project, SERAP, the US SEC said there was no doubt that “corruption exacts an enormous toll, both human and economic, across the world.

“Moreover, as the US Congress recognised when the FCPA was first enacted, corporate bribery is bad for business as it is fundamentally destructive of our free market system.”

The letter sent to SERAP through its volunteer Counsel in the US, Professor Alexander Sierck, read in part: “The question of identifying parties who suffer cognisable harm in connection with the securities law violations at issue in a given enforcement matter is driven by the facts and circumstances of that particular case.

“We appreciate your thoughtful submission, and will give appropriate consideration to your suggestions, guided by the Commission’s multi-prolonged mission, as well as the legal framework surrounding the federal securities laws.”

In a letter dated 15 March 2012, SERAP had written to the US SEC, stating that, “at the moment, the civil penalty and disgorgement proceeds that companies agree to pay to resolve US FCPA investigations are retained by the US government.

“Civil society groups in the home country, or non-profit organisations such as the Bill and Melinda Gates Foundation and The Carter Center serving that country, be eligible to apply for such proceeds as well, or instead, for use for ‘public benefit projects’ in the affected foreign country, subject to anti-corruption safeguards.”


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