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Bill Seeks To Codify DOJ’s Prior China Initiative

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As highlighted in this prior post, in November 2018 the Department of Justice announced a China Initiative. Among the numerous goals of the China Initiative was to ‘identify Foreign Corrupt Practices Act (FCPA) cases involving Chinese companies that compete with American businesses.”

In February 2022, the DOJ scrapped the China Initiative. According to this article, “the decision to end the program comes after a months-long review ordered by the new head of the National Security Division, Assistant Attorney General Matthew Olsen. “While I remain focused on the evolving, significant threat that the government of China poses, I have concluded that this initiative is not the right approach.”

Recently, Senator Rick Scott (R-FL) “announced a package of five national security focused bills to hold Communist China accountable and better protect American families. This legislative package contains bills which prohibit the U.S. Government from buying drones made by America’s adversaries, protect Taiwan from Communist China’s growing aggression, sever all financial transactions between the U.S. and Communist China once it engages in armed aggression against Taiwan, reestablish the China Initiative at Department of Justice, and require a list to be published listing all countries who have a bilateral security arrangement with Communist China to protect Americans abroad and prevent CCP police stations in the US.” (See here).

The Protect America’s Innovation And Economic Security from CCP Act, cosponsored by Senators Bill Hagerty (R-TN) and Marco Rubio (R-FL) seeks to establish the CCP Initiative in the National Security Division of the DOJ.

Among the eleven stated goals would be to “identify FCPA cases involving Chinese companies that compete with United States businesses.”

Identify does not exactly mean target, nevertheless this component of the proposed legislation seemingly conflicts with U.S. obligations under the OECD Convention on Combating Bribery of Foreign Public Officials In International Business Transactions.

Specifically, Article 5 of the OECD Convention states:

“Investigation and prosecution of the bribery of a foreign public official shall be subject to the applicable rules and principles of each Party. They shall not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved.”

Identifying Chinese companies is seemingly focusing on the identity of the legal person involved.

Identifying Chinese companies that compete with American businesses is seemingly a consideration of national economic interest.

 

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