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.