220 Years Later and the Commonwealth Is Still Imposing Laws on the United States: A Comparative Look at U.S. Antibribery Legislation and the United Kingdom's Bribery Act 2010

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ABSTRACT

The United States has been combating the bribery of foreign officials for 35 years through the Foreign Corrupt Practices Act (FCPA). Both domestic and international prosecutions for bribery remained almost nonexistent for decades. In recent years, the United States experienced an explosion of enforcement actions under the FCPA. Broad enforcement theories and increased prosecutorial effort have greatly expanded the scope of the FCPA. Moreover, the passage of the UK Bribery Act in 2010 has forced many U.S. organizations to face additional and conflicting antibribery regimes. Although the United States remains the world leader in prosecuting the bribery of foreign officials, the FCPA has failed to keep pace with the evolving international standard of antibribery legislation. As a result, ever-increasing uncertainty surrounds antibribery compliance and liability. In response to these concerns, Congress must amend the FCPA accordingly, as inaction will only exacerbate the current concerns.

TABLE OF CONTENTS

I. INTRODUCTION

II. HISTORY OF ANTIBRIBERY LEGISLATION

III. OVERVIEW OF THE FCPA

   A. The Antibribery Provisions
   B. Corrupt Intent

      1. Anything of Value
      2. Foreign Official
      3. The Business Purpose Test
      4. The Facilitating or Grease Payment
         Exception
      5. Affirmative Defenses: Legal Payments
         and Bona Fide Expenditures

   B. The Accounting Provisions

      1. The Books and Records Provision
      2. The Internal Controls Provision

IV. ANTIBRIBERY LAW IN THE UNITED KINGDOM:
    BRIBERY ACT 2010

   A. Giving or Receiving Bribes: [section] 1 and
      [section] 2 Offenses
   B. Bribery of Foreign Public Officials:
      [section] 6 Offenses
   C. Failure of Commercial Organizations to
      Prevent Bribery: [section] 7 Offenses

V. COMPARATIVE ANALYSIS: THE FCPA AND THE
   BRIBERY ACT 2010

   A. Jurisdictional Reach
   B. Corrupt Element
   C. Facilitation Payments
   D. Compliance Programs and the Adequate
      Procedures Defense

VI. A U.S. RESPONSE TO THE BRIBERY ACT 2010

   A. A Graduated Penalty System: Proportional
      Exclusion of Facilitation Payments
   B. Adoption of a Complete Adequate
      Procedures Defense

VII. CONCLUSION

I. INTRODUCTION

Despite the ever-increasing pressures impacting American businesses and jobs--Why does the United States continue to force American companies to spend billions of dollars on bribery compliance while failing to actually curtail international bribery? Far from being a fringe issue, antibribery enforcement has become a top business concern in recent years. (1) It is estimated that bribery conservatively amounts to a trillion dollars a year, (2) which is equal to approximately 1.5 percent of the world's gross domestic product (GDP). (3) Almost a quarter of large international organizations have been approached to pay a bribe within the past 2 years. (4) While disgorgements of profits and fines under the FCPA 5 can be significant, (6) even allegations of bribery can require substantial expenses. (7) Despite facing no formal prosecution under the FCPA, Avon Products Inc., Weatherford International Ltd., and Wal-Mart Stores Inc. collectively spent nearly half a billion dollars in the first nine months of 2012 defending allegations that employees bribed foreign officials. (8)

The relative strength (9) of U.S. antibribery legislation and enforcement has effectively reduced the likelihood of foreign actors requesting bribes from U.S. organizations. (10) However, the effectiveness of the FCPA comes with ever-increasing costs as organizations face more legal uncertainty surrounding FCPA compliance. In-house counsel for the largest companies in the United States cite the FCPA as one of the three main legal uncertainties facing their organizations. (11) Over the past few years, the U.S. Department of Justice (DOJ) and the U.S. Securities and Exchange Commission (SEC) have dramatically increased their commitment to FCPA enforcement. …