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NGO Sector

International non-governmental organizations (INGOs) accept enormous risks and responsibilities in their effort to deliver aid in some of the most dangerous parts of the world. In the face of war, famine, mass displacement, and human rights abuses, they carry out their work with a tremendous urgency. When that work is thwarted by entrenched corruption—when the delivery of food or other vital supplies is held up by a petty official demanding a bribe—it can be tempting to “go along to get along” for the sake of a greater good.

There are reasons to resist that temptation. For one thing, bribery of foreign officials is illegal. The U.S. Foreign Corrupt Practices Act (FCPA) prohibits “domestic concerns” (among others) from giving or offering “anything of value” to a foreign official to influence that official in the performance of his or her duties. Although by its terms the act addresses bribes that are intended to help with “obtaining or retaining business for or with . . . any person,” the U.S. Department of Justice (DOJ) has interpreted that phrase broadly, so that it includes matters such as obtaining a tax waiver or moving products through customs more quickly—pretty much anything that affects an entity’s bottom line.

But doesn’t that rule just apply to for-profit entities? According to the U.S. government, no, it doesn’t. In 2010, the DOJ issued an opinion finding that a nonprofit, U.S.-based microfinance institution qualified as a “domestic concern” and was therefore subject to the FCPA. There is no express exception for nonprofit organizations under the U.S. anti-bribery law—or under any other international anti-bribery convention: both the U.N. Convention against Corruption and the OECD’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions have been interpreted to cover the work of nonprofit organizations.

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