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Abstract: 

This issue opens with Cladius Sokenu’s in-depth examination of the Foreign Corrupt Practices Act (FCPA). On the heels of the recent uptick in FCPA enforcement action against financial institutions, Mr. Sokenu examines the various novel theories of liability relied upon by governmental entities including use of broad definitions of “foreign official” and bribes as well as the scope of indirect liability. Our second article, by Joseph D. Simon and Elizabeth A. Murphy, details the New York State Department of Financial Services’ recent cybersecurity regulations, which aim to to prevent, detect, and respond to cybersecurity threats. The authors discuss who is subject to this wide ranging regulation, what it requires, and its likely impact on the financial services sector. Alexander Weinman, in our third article, examines the December 2016 developments relating to Section 871(m) of the Internal Revenue Code, which aims to prevent the avoidance of dividend withholding taxes in cross-border equity swaps by using equity derivatives. Mr. Weinman discusses the tests used for simple and complex contracts to determine applicability of Section 871(m). The Foreign Account Tax Compliance Act (FATCA) is the subject of our fourth article, by Agustin Ceballos and Enrique Hernandez. The authors give an overview of FATCA and set out the Act’s differences with the Organization for Economic Cooperation and Development’s Common Reporting Standard. This issue concludes with a Banking Developments column by professor Kevin A. Diehl, who analyzes the impact of Estate of McKelvey v. Commissioner on whether variable prepaid forward contract settlement dates may be extended without recognizing taxable gains.

Keywords: Foreign Corrupt Practices Act, Cybersecurity, Cross-Border Equity Swaps, Foreign Account Tax Compliance Act, Common Reporting Standard, Variable prepaid forward contracts

Affiliations:  1: New York Law School.