FCPA Opinion Procedure Release 2001-01 came from a U.S. company planning to enter into a 50/50 joint venture with a French company. Some fo the contracts to be contributed by the French company predate the French Law No. 2000-595 Against Corrupt Practices.
The French company represented to the Requestor that none of the contracts and transactions to be contributed by the French company were procured in violation of applicable anti-bribery or other laws. The Requestor has not represented any facts which would indicate that the French company’s representation is, or may be, false.
The DOJ stated it was not intending to take any enforcement action, but with an important caveat:
The Department specifically notes that the French company’s representation is not limited to violations of the FLAC, and, for that reason, interprets the French company’s representation to mean that the contracts were obtained without violation of either French law or the anti-bribery laws of all of the jurisdictions of the various government officials with the ability to have influenced the decisions of their government to enter into the contracts to be contributed by the French company to the joint venture. Should, however, the French company’s representation in fact be limited to violation of then-applicable French law, the Requestor, as an American company, may face liability under the FCPA if it or the joint venture knowingly take any act in furtherance of a payment to a foreign official with respect to previously existing contracts irrespective of whether the agreement to make such payments was lawful under French law when the contract was entered into.