Foreign governments want a share of U.S. bribery fines
* Non-profit asked to apply for SEC disgorgement, fines
* SEC foreign bribery sanctions go to U.S. Treasury
* UK authorities experimented with similar proposal
By Aruna Viswanatha
WASHINGTON, D.C., March 22 (Reuters) - As the U.S. government collects record penalties through its stepped-up enforcement of laws against bribery overseas, the very foreign government entities involved in the corruption are clamoring for a cut of the proceeds.
In a letter sent last week, a non-profit group asked the U.S. Securities and Exchange Commission to consider letting outside groups apply for a portion of its settlements involving the Foreign Corrupt Practices Act, a U.S. law that bars bribes to officials of foreign governments.
Those outside groups include the foreign government entities that have been "victims of corruptly procured contracts" and non-profits.
"It is axiomatic that victimized foreign government entities bear the cost of bribery and corruption of their officials," said the letter from the Socio-Economic Rights and Accountability Project (SERAP), a group that works on anti-corruption in Nigeria.
It is not an idle concept considering the United States collects billions of dollars each year from FCPA sanctions.
Nearly half of the $2 billion in settlements and judgments the Justice Department's criminal division secured in 2010, for example, came from foreign bribery cases.
At least one other country has tested providing funds from foreign corruption cases to countries where the corruption took place.
Last week, for example, the UK Serious Fraud Office announced BAE Systems had agreed to fund 29.5 million pounds ($46.63 million) in educational projects in Tanzania after the company admitted in 2010 that it failed to keep adequate records of certain payments it made to receive a defense contract in the country.
"I think it's a great idea," Richard Cassin, a lawyer who helps companies comply with the FCPA and writes the popular FCPA Blog, said about the SERAP proposal.
"The offenses victimize the foreign country. To bring damages back to the enforcement country and then have no mechanism to consider releasing them back to the victims seems a bit lopsided."
The SEC said it would review the letter and declined to comment further.
SERAP's proposal would extend the SEC's current practice of forcing companies and fraudsters to return, or disgorge, illicit profits to harmed investors.
In its $550 million settlement with Goldman Sachs Group Inc over its marketing of certain subprime mortgage securities, for example, the SEC set aside $250 million to be returned to investors.
But in the SEC's FCPA cases, the often sizeable disgorgements go to the U.S. Treasury.
The SERAP letter is not the first attempt by foreign governments to seek funds from FCPA settlements in the United States. One prior attempt involved court intervention in a Justice Department settlement.
When Alcatel-Lucent agreed to pay $137 million to resolve allegations in 2010 that it made improper payments in Costa Rica and elsewhere, the state-owned telephone company in Costa Rica whose official took the alleged bribes claimed it was a victim in the bribery scheme.
The Instituto Costarricense de Electricidad asked for restitution under the settlement, but a U.S. federal court rejected that bid.
However, Alcatel announced at the time that it separately paid the Costa Rican government $10 million for "social damages" to the country caused by the scheme.
The United Kingdom, in its attempt to provide restitution, has grappled with ensuring funds do not fuel more corruption.
The SFO said that part of the delay in assigning BAE's project in Tanzania was determining how the money should be used and how to monitor the funds to make sure they are used effectively.
The SERAP proposal suggested the SEC require a foreign government agency to demonstrate it had new anti-corruption safeguards in order to receive any funds.
Washington lawyer Alexander Sierck, who wrote the letter from SERAP, said he was inspired by the eye-popping numbers in recent settlements in which several oil services companies paid some $1.7 billion to resolve bribery allegations tied to a gas plant in Nigeria.
"Even if a fine were $100 million, if someone could apply for say 10 percent of it, not bad," he added.
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