The “corruption and bribery” became an international problem in the world and a global combat against it is started in the international business environment. Most of the countries are fighting against the corruption and bribery by creating new regulations or regulating new principles or signing agreements related to this.
The FCPA means “the Foreign Corrupt Practices Act of 1977”, is a United States federal law and a part of Securities Exchange Act of 1934, regulates provisions concerning corruption and bribery of foreign officials. The Act applies to natural and legal persons who are involved in a corrupt conduct. For example, any company quoted on the American stock exchange; companies and/or subsidiaries established in the territory of US; citizens of US and US-residents; shareholder and/or, member of the board of directors or, executive of the US company. Although the FCPA is a US law, that can be implemented almost worldwide. For example, the ones who do not even have a direct connection with US can be also liable within the scope of the FCPA and pay penalties. In such a way that when an executive of an US subsidiary of a Turkish company, acting also according Turkish legislation, commits bribery or corruption, the Turkish company (parent company) can be also liable under the FCPA.
In recent years, FCPA is rising in importance especially for mergers & acquisitions. During mergers & acquisitions process FCPA provisions & terms shall be considered for the purpose of clearness. The FCPA brings significant liability by paying higher penalties.
UK Bribery Act
The Bribery Act 2010 is an UK Act which covers the criminal law concerning bribery. This Act regulates strict penalties for active (giving money) and passive (taking money) bribery by individuals and also companies. The FCPA and the UK Bribery Act have similar arrangements. Like the FCPA, the Bribery Act also presents heightened liability for companies, individuals. This UK Act has an extra-territorial reach for UK companies (doing business abroad-overseas) and for foreign companies (having operations in the UK).
Turkey is also among these combative countries.
OECD (Organization for Economic Co-operation and Development) is an international economic organization of 34 countries, founded in 1961. To restore economic stabilization and to promote world trade are the purpose and primary objectives of OECD. That organization is aiming also to reduce the corruption and bribery, creating the OECD Anti-Bribery Convention (Convention on Combating Bribery of Foreign Public Officials in International Business Transactions) (“Convention”) which was signed in 1997 and came into force in 1999. The Convention aims combating to bribe foreign public officials by real person or legal entity, having nationality of the signatory countries of the Convention. With this regulation the aim is to avoid the corruption and bribery in international business transactions between signatory countries. Turkey, a member of the OECD, has signed also this Convention.
With the aim of implementing of the Convention in the Turkish national law, particularly Turkish Criminal Code No. 5237 and Declaration of Property and Fight Against Bribery and Corruption, Law No.3628 were amended. Under Turkish law, the criminal law applies to anti-bribery and anti-corruption issues however there is no civil enforcement.
Some general and special arrangements on combating bribery and corruption in Turkey are:
- Turkish Criminal Code No.5237
- Turkish Criminal Procedure Law No.5271
- Public Officers Law No.657
- Declaration of Property and Fight Against Bribery and Corruption Law No. 3628
- Misdemeanor Law No. 5326
- Regulation on Declaration of Property, No. 90748
- Regulation on Ethical Principles for Public Officers and Procedures and Principles for Application
For instance, Turkish Criminal Code No.5237 includes the definition and principles of “bribery” in detail. Public Officers Law No.657 regulates provisions concerning prohibition of accepting gifts, and providing benefits. According Law No.657, public officials are prohibited from accepting or requesting gifts directly or indirectly or from accepting and borrowing money from business owners.