Tweet to Defeat Government Bribes: Limiting Extraterritorial Jurisdiction under the Foreign Corrupt Practices Act to Combat Global Corporate Corruption

By Routh, Sarah | Vanderbilt Journal of Transnational Law, March 2018 | Go to article overview

Tweet to Defeat Government Bribes: Limiting Extraterritorial Jurisdiction under the Foreign Corrupt Practices Act to Combat Global Corporate Corruption


Routh, Sarah, Vanderbilt Journal of Transnational Law


TABLE OF CONTENTS  I.     INTRODUCTION                                          627 II.    BACKGROUND                                            629          A. Enactment of the Foreign Corrupt                 629             Practices Act          B. 1998 Amendments: Extension of                    630             Jurisdiction to Foreign             Corporations          C. Increase in Overall Enforcement                  632             Matters under the FCPA from              1998 to Today          D. Future Enforcement under                         634             the Trump III.   ANALYSIS                                              637          A. Purpose and Framework of                         637             the FCPA          B. Scope of Jurisdiction over Foreign               639             Corporations and Individuals under             [section] 78dd-3 and Affirmative Defenses          C. The FCPA in Practice: Broad                      640             Enforcement with Little Oversight                1. Increased NPA and DPA                      640                2. Ambiguity in the Definitions of            642                  "Foreign Official" and                  "Giving Value"                3. Consequences of Expansion to               644                  Foreign Entities and Individuals:                  Arbitrary Enforcement and                  Higher Penalties          D. Issues Facing Enforcement against                645             Foreign Entities and Individuals                1. Violations of International Norms of       645                  Sovereignty and Ineffective                  International Enforcement                    a. Anti-Bribery Cultural                  645                       Norms and International                       Customary Law Regarding                       Sovereignty                    b. Unequal Global Enforcement             647                       of Foreign Bribery                2. Practical Costs to US Interests            648          E. Using Diplomacy and International                650          Treaties                1. Public Diplomacy Efforts by                650                  Politicians and Bureaucratic Agencies                  to Realize Global Objectives                2. OECD Convention Mandates and               652                      Ways to Ensure Compliance IV.    SOLUTION                                              653                                                              653          A. Limit [section] 78dd-3 to Foreign             Entities and Individuals Acting             within US Borders          B. Utilize Diplomacy to Increase                    655             Prosecution                1. Executive Branch Plan to Encourage         655                  Compliance                                  656                2. Invoke the OECD Convention to                  Boost Compliance V.     CONCLUSION                                            656 

I. INTRODUCTION

Enacted in 1977, the Foreign Corrupt Practices Act (FCPA or the Act) was a laudable effort by Congress to tackle the epidemic of corporate greed in the international realm. Having recently dealt with extensive political corruption, the United States sought to regain its international prestige by criminalizing the corporate bribes of foreign officials. (1) However, prosecuting US corporations and individuals while failing to account for foreign corporations and individuals resulted in a competitive disadvantage for US companies operating in the global market. (2) To resolve this issue, Congress amended the Act to extend jurisdiction to foreign corporations and individuals. (3) Consequently, US agencies were statutorily authorized to enforce the FCPA against entities and individuals who were not citizens of the United States. (4)

This amendment has led to an increase in the prosecution of companies and individuals--both foreign and domestic--under the Act over the last decade. …

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