The FCPA prohibits bribes to foreign officials, but the statute carves out an exception for bribes that facilitate or expedite a foreign official’s routine tasks.  The U.S. stands nearly alone on the global stage with this exception, yet no changes to the law are in view.  In 2010, Chuck Duross, Assistant Chief in the DOJ Criminal Division’s Fraud Section, said, “We’re not saying you should make facilitating payments, it’s an exception, we’re not encouraging it.”  The tide, strengthened after passage of the U.K. Bribery Act, has been turning against facilitation payments, and more and more companies have begun to rethink allowing any kind of “grease” payment at all.  Compounding the trend are the high-profile troubles of Walmart, in which one prominent issue is whether certain payments constitute bribes or facilitation payments under the FCPA.  The reasons to ban facilitation payments outright are plenty, a significant one being the conflict of laws: Not only do most countries ban these kinds of payments to foreign officials, but most local laws ban these kinds of payments to domestic officials, subjecting the company that makes such a payment to potential prosecution abroad even if the payment is legal under U.S. law.  Further complicating the picture is the need to properly record the facilitation payments or risk an FCPA books and records violation.  Moreover, there is the challenge of employees on the ground determining whether an official receiving a grease payment is using “discretion” or not – that is, determining whether the same dollars are a bribe or a facilitation payment.  Prohibiting facilitation payments completely, however, may not be feasible.  Sometimes the safety of a company’s workers depends on such a payment; sometimes foregoing the payment will shut down the entire business; and sometimes the payment truly is a small payment to expedite a routine government service.  Designing and implementing a policy that protects a company from liability yet is flexible enough to accommodate extenuating circumstances is a difficult task.  This two-part article series takes on that task and sheds light on the nuances of this issue, providing insight from leading practitioners on how to formulate a workable compliance policy on facilitation payments.  Part one of this series discusses: the definition of a facilitation payment, including examples; the differing treatment of such payments under the FCPA and other laws, notably the U.K. Bribery Act; the tension that has resulted from the conflict of laws; cases in which the argument has been made that the payments in question were facilitation payments, including the Walmart investigation; and the trend among companies towards banning facilitation payments outright.  Part two of the series will address: advisable “safety valves” or exceptions to a general ban on facilitation payments; drafting and implementing a facilitation payment policy to accommodate those exceptions and avoid liability; concerns relating to the all-important issue of properly recording facilitation payments; and guidance on training employees about facilitation payments.