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Identifying Chinese Companies For FCPA Violations Conflicts With The OECD Convention

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Perhaps it is neither here nor there 40 years later, but the FCPA’s legislative history is clear that Congress enacted the Foreign Corrupt Practices Act motivated primarily by selfish foreign policy reasons, not altruistic do-good reasons. (See here for the article “The Story of the FCPA”).

I was reminded of this when reading this recent DOJ press release announcing its China Initiative. Among the ten specifically identified components of the initiative is the following: “identify Foreign Corrupt Practices Act (FCPA) cases involving Chinese companies that compete with American businesses.”

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SNC-Lavalin Takes Its Pouting To The People With “An Open Letter To Canadians”

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These pages have long covered SNC-Lavalin’s pouting upon being criminally charged by Canadian authorities for alleged improper payments to Libyan officials. (See here and here for prior posts).

Yesterday, the company’s pout fest continued with this extraordinary “open letter to Canadians” along with two feel-good videos.

The open letter from Neil Bruce (President and Chief Executive Officer) states in full:

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FCPA Enforcement Actions Against Foreign Companies From OECD Convention Peer Countries

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As highlighted in this post, like prior years (see here) much of the largeness of 2017 FCPA enforcement resulted from corporate enforcement actions against foreign companies.

Specifically, of the 13 corporate enforcement actions from 2017, 5 (approximately 40%) were against foreign companies (based in many instances on mere listing of securities on U.S. markets and in a few instances on sparse allegations of a U.S. nexus in furtherance of an alleged bribery scheme). Even more dramatic, of the net $1.13 billion FCPA settlement amounts from 2017 corporate enforcement actions, approximately 90% of this number was from enforcement actions against foreign companies.

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“Non-U.S. Efforts To Prosecute Overseas Bribery Are Hampered By The Absence Of Clear, Credible Statements From U.S. Prosecutors”

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Frederick Davis (Debevoise & Plimpton) recently authored a dandy piece that nicely articulates a problem in the international fight against overseas corruption and that is: “non-U.S. efforts to prosecute overseas bribery are hampered by the absence of clear, credible statements from U.S. prosecutors that they will desist from prosecuting if a local prosecutor does so in good faith.”

Before highlighting Davis’s article, as previously highlighted on these pages U.S. enforcement of the Foreign Corrupt Practices Act against foreign companies from OECD Convention countries, often based on sparse / novel jurisdictional theories, presents a host of problems.  Indeed, the OECD Convention recognized this issue and states: “when more than one Party has jurisdiction over an alleged offence described in this Convention, the Parties involved shall, at the request of one of them, consult with a view to determining the most appropriate jurisdiction for prosecution.”

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OECD Report Misses The Mark

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Recently, a High-Level Advisory Group on Anti-Corruption and Integrity, “composed of independent experts from a variety of professional backgrounds in the anti-corruption field” drafted a lengthy report to the OECD to “strengthen its work on combating corruption and promoting integrity.”

In the report the Group makes 22 separate recommendations.

Problem is, the report completely misses the mark on the most obvious and effective way to reduce corruption.

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