Uncharted boundaries of the US Foreign Corrupt Practices Act

Purpose – This paper, presented at the 2012 International Symposium on Economic Crime, Jesus College, Cambridge, identifies four serious problems that affect enforcement of the US Foreign Corrupt Practices Act (FCPA) the awkwardness of using the prosecutorial system as a de facto regulatory agency; the uncertainties imposed on corporate capital budgeting systems in determining how much to spend on compliance; the paucity of judicial interpretation of the law, and thus the interpretations of prosecutors as de facto law that may not be law; and the ambiguous benefits of compliance with the law that leads to inadequate compliance. The paper aims to discuss these issues. Design/methodology/approach – The paper employs traditional legal research methodology, analysing case law, statutory interpretation, legal literature, and textual analysis of aggregated deferred prosecution agreements and non-prosecution agreements between the US Department of Justice (DOJ) and national and multinational corporations between 2000 and 2011. Findings – Several boundaries require clearer definition in US enforcement of the FCPA. Research limitations/implications – The paper defines areas for fruitful comparative legal analysis between enforcement of the US FCPA and enforcement of the UK Bribery Act of 2010. Practical implications – The paper has practical implications for UK policy makers addressing issues of the Bribery Act of 2010. Social implications – The paper provides cautionary notes to public policy makers in the UK as the Serious Fraud Office designs alternative prosecution approaches to enforce the Bribery Act of 2010. Originality/value – Other various signatory nations of anti-corruption treaties, and in particular the UK, can benefit by observing the experience of the US DOJ's enforcement regime and building more clarity into implementing anti-corruption legislation.