Implications of Extrajudicial Enforcement of the U.S. Foreign Corrupt Practices Act for Anti-Corruption Compliance and Ethics Programs

The United States Foreign Corrupt Practices Act (“FCPA”) is a federal law that criminalizes bribery of foreign government officials. The United States Department of Justice and the United States Securities and Exchange Commission typically settle FCPA charges against companies, and so enforcement of this law largely occurs outside the judicial process. This Article discusses two implications of this extrajudicial enforcement. First, it leaves organizations facing a broad risk of foreign bribery given the government’s tendency to apply the FCPA to its farthest reaches. This causes business organizations to expand the scope of their anti-corruption compliance and ethics programs, which increases the costs of these programs and interferes with doing business. Second, the government’s FCPA settlements provide relatively fine-grained guidance concerning effective anti-corruption compliance and ethics programs, which may encourage business organizations to develop more credible programs. Since both implications of extrajudicial enforcement suggest practical consequences for business organizations, this Article suggests further study to understand the existence or degree of these tendencies.

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