律师和《反海外腐败法》专家表示，杜克和沃尔玛其他高管可能违犯了该法，因为他们在一份针对该公司墨西哥分部广泛存在的行贿受贿问题的调查报告上签字同意，而这份报告事实上充满漏洞。同时据报道，他和其他高管很久之前就得知这些贿赂行为，但他们在好几年后才将这些潜在的违法行为告知股东和政府监管机构。这也可能对杜克不利。根据《纽约时报》本周末的一篇报道，杜克2005年就发现了这些所谓的贿赂行为，但是直到《纽约时报》告知这家全球最大的零售商该报正在调查此事后，公司管理层才在去年12月份将问题汇报给执法机构。

    据报道，美国司法部正在对沃尔玛的贿赂指控进行刑事调查。证券交易委员也正对此展开调查。美国时间周一下午，众议院民主党人士表示他们也将调查沃尔玛的贿赂问题。

    美国司法部在指控公司高管贿赂案件方面表现得越来越积极，这是沃尔玛可能遭到指控的大背景。去年12月，美国政府曾经就公司贿赂问题对德国工业公司西门子（Siemens）的八名前任管理者提出指控，其中包括一名西门子核心管理层成员。全球性大公司的董事会成员被指控违反《反海外腐败法》，这还是第一次。大公司违反该法案的案例中有很多在最终解决时并未涉及个人。在过去五年里，政府提起的针对个人的此类案件逐渐增多，但有成有败，结果不一。

    卡普兰沃克律师事务所（Kaplan & Walker）的《反海外腐败法》专家杰弗瑞•卡普兰表示，“沃尔玛公司可能会被处以巨额罚款。而对于高管将做如何处理则很难说。如果公司管理者发现贿赂行为，他们必须按照要求做一些事情，但并不是太多。”

    在过去十年里，沃尔玛公司远远不是唯一一家身陷贿赂指控的大型公司。上世纪七十年代《反海外腐败法》就已出台，但公司管理者直到十年前才更为主动地依法行事，其中的原因主要是受到《萨班斯-奥克雷法案》（Sarbanes Oxley）和国际条约的制约。从那以后，司法部和证券交易委员会每年都会提起十来宗贿赂指控案件，其中一些涉及到大公司。去年，美国司法部官员表示，他们有超过150宗公开调查涉及到《反海外腐败法》。

    Lawyers and FCPA experts say that Duke and other top Wal-Mart officials may have violated the law when they allegedly signed off on a flawed investigation of widespread bribery at the company's Mexican division. Also potentially damaging for Duke is that it took years for Wal-Mart officials to tell shareholders and government regulators about the potential misdeeds, long after he and other top executives allegedly knew about the reported bribes. According to an article in the New York Times this weekend, Duke found out about the alleged bribes in 2005, but company officials only reportedly informed law enforcement officials about the potential abuses in December, which was after the Times says it told the world's largest retailer the paper was looking into the matter.

    The Department of Justice is reportedly conducting a criminal probe of the Wal-Mart bribery allegations. The Securities and Exchange Commission is investigating as well. On Monday afternoon, Democrats in the House of Representatives said they too would investigate the allegations of bribery by the retailer.

    The potential charges against Wal-Mart come at a time when the Justice Department is getting more aggressive in charging top executives in bribery cases. In December, the government charged eight former Siemens officials, including a former member of the German industrial company's central executive committee, in connection with bribery charges at that company. That was the first time a board member of a large global corporation was charged with a FCPA violation. Many FCPA violations at large companies are settled without naming individuals. In the past five years, the government has brought more FCPA cases against individuals, but those have only had mixed success.

    "Wal-Mart is facing potentially huge penalties," says Jeffrey Kaplan, a FCPA expert at law firm Kaplan & Walker. "It's harder to say for executives. Corporate officials are required to do something when they find out about bribery, but not that much."

    Wal-Mart would be far from the only large company ensnared by bribery charges under FPCA in the past decade. The law has been around since the 1970s, but officials, aided by Sarbanes Oxley and international treaties, started more aggressively bringing cases under the act about a decade ago. Since then the Department of Justice and the Securities and Exchange Commission have brought about a dozen cases a year alleging bribery. A number have involved large companies. Last year, DOJ officials said they had more than 150 open investigations involving the Foreign Corrupt Practices Act.

    出人意料的是，尽管《反海外腐败法》使得在国外发生的贿赂行为能够在美国受到惩罚，但在很长时间内都没有要求公司及其高管对此类错误行为做出汇报，即便是在他们发现此类行为之后。这就是为何尽管有该法律存在，但大多数贿赂行为几十年内都未查明的原因。这种情况在2002年《萨班斯-奥克雷法案》通过之后发生了变化，至少是对公开上市公司来说是这样。在该法案制约下，公司首席执行官和首席财务官们必须保证他们所在公司呈报的财务文件是准确的。因为公司高管必须隐瞒贿赂行为，所以常常可以通过贿赂看出公司账目里至少有一些内容是作假的。因此根据《萨班斯-奥克雷法案》，不披露可能的贿赂行为实际上就违反了证券法。

    谢尔曼斯特林律师事务所（Shearman & Sterling）合伙人菲利普•尤洛夫斯基表示，“你仍然不必告知执法机构，但你得对所呈交的财务文件中的用语进行修改，任何偏离样板文件的说法通常都会引起注意。”

    这么做的结果是出现了一大批涉及到《反海外腐败法》的案件。其中对大型公开上市企业提起的绝大多数诉讼，都是由这些公司自己报告上来的，目的可能是试图减少罚金或者是将责任推给低层员工。沃尔玛有所不同。当其贿赂案件东窗事发时，杜克正是沃尔玛国际业务的负责人。尽管如此，他在2009年初担任公司首席执行官后，依然作证称公司财务报表准确并且所有可能的欺诈行为都已进行披露。前任首席执行官李•斯考特似乎也知道贿赂情形的存在，但也仍然签字批准了财务报表。沃尔玛直到去年才向股东披露公司正在对可能违犯《反海外腐败法》的行为进行调查。

    此外，该法案并未要求公司报告其员工贿赂国外官员的证据，而是要求他们采取合适的控制措施以便察觉贿赂行为，并在贿赂发生时进行公正调查并做记录。沃尔玛似乎并不是这么做的。根据《纽约时报》报道，在杜克和其他公司管理者发现可能的贿赂行为后，他们最终把开展内部调查的任务交给了一位涉嫌是贿赂同谋的管理者。所以最后此人没有发现任何关于贿赂的证据，也就毫不奇怪了。如果调查只是做做样子，那么这项调查本身也是违反《反海外腐败法》的。

    卡普兰表示，“换言之，如果沃尔玛高管们制造了一起弄虚作假的调查，那么对他们提出指控就是有章可循的。”

    译者：李玫晓/汪皓

    That's because, surprisingly, while FCPA makes foreign bribery punishable in the U.S., for a long time there was no requirement that companies and their officials report the misdeeds, even after they found out about them. And that's why, despite the law, bribery went mostly unchecked for decades even after FCPA was on the books. That changed, at least for public companies, after the passage of Sarbanes Oxley in 2002. Under that law CEOs and CFOs must certify that their companies' financial filings are correct. Bribes, because they have to hidden, are generally an indicator that at least something in a company's books has been faked. So under Sarbanes Oxley it's effectively a violation of securities law not to disclose knowledge of potential bribes.

    "You still don't have to tell law enforcement officials, but you do have to change the language in your financial filings and any deviation from the normal boiler plate usually gets noticed," says Philip Urofsky, a partner at law firm Shearman & Sterling.

    The result has been a flood of FCPA cases. The vast majority of cases brought against large public companies under the act are self-reported by companies either trying to minimize fines or shift blame to low-level employees. That doesn't appear to be what happened at Wal-Mart. Duke was the head of the company's international operations when the allegations of bribery came to light at the company. Nonetheless, when he became CEO in early 2009, Duke attested to the fact that the financial statements were accurate, and that all instances of possible fraud had been disclosed. Former CEO Lee Scott appears to have known about the concerns about bribes and signed off on financial statements as well. The company didn't disclose to shareholders it was investigating a potential violation of FCPA until late last year.

    What's more, while companies are not required to report evidence that their employees bribed foreign officials, they are required to have controls in place to detect bribes and fairly investigate and document the matters when they occur. That doesn't seem to be what happened at Wal-Mart. According to the Times, after Duke and other company officials found out about the potential bribes they eventually assigned the internal investigation of the matter to an executive who was alleged to have been complicit in the bribery scheme. Unsurprisingly, the official found little evidence of wrong-doing. If the investigation was indeed a sham, then that would be a violation of the FCPA as well.

    "If the theory is that Wal-Mart executives created a make-believe investigation, then that would support bringing a case against them," says Kaplan.