What If Turkey Had A FEPA-Like Law?
It is sometimes interesting to think about if foreign countries had laws like the U.S. and/or enforced those laws in ways in which the U.S. does.
The U.S. has brought several Foreign Corrupt Practices Act enforcement actions against foreign companies for bribing their own “domestic” officials (for instance an FCPA enforcement action against a Brazil company for bribing Brazilian officials) based on sparse U.S. jurisdictional grounds (sometimes the mere listing of securities in the U.S.).
Should foreign countries therefore prosecute U.S. companies for bribing their own “domestic” officials based on sparse jurisdictional grounds – such as a mere listing of securities in that country or an e-mail in furtherance of the bribery scheme passing through a server located in that country?
FEPA Remains A Muddy Mess
Ever since the Foreign Extortion Prevention Act (FEPA) was proposed in Congress nearly five years ago and through its enactment in late 2023, this site has explained how FEPA was a muddy mess in terms of its statutory language. This prior post even suggested specific amendments to the Foreign Corrupt Practices Act to capture the so-called demand side of bribery – if indeed Congress determined that such a law was necessary.
Nevertheless, Congress plowed forward and FEPA was inserted into the massive FY2024 National Defense Authorization Act without any seeming meaningful discussion or debate about its statutory text.
It’s not often that a piece of legislation sitting around in Congress for nearly five years prior to enactment is almost immediately amended, but this has happened with FEPA.
On July 30th, the so-called Foreign Extortion Prevention Technical Corrections Act become law (Public Law No. 118-78). (See here).
Similar to the originally enacted FEPA, the revised FEPA is also a muddy mess in terms of its statutory language.
Who Needs FEPA?
When the Foreign Extortion Prevent Action (FEPA) was enacted in late 2023 it was portrayed by some as filling a legal gap given that the Foreign Corrupt Practices Act only captures the supply side of “bribery” and not the “demand side” (the “foreign officials” who receive or request bribes).
This portrayal ignored the fact that the Department of Justice has long used other criminal statutes (most often money laundering laws) to criminally charge “foreign officials” in connection with alleged bribery schemes.
Thus, was there really a meaningful “gap” that FEPA was actually filling? (As will be explored in a future post, FEPA was so poorly drafted that it has already been amended to correct several original drafting errors).
From Across The Pond
This post highlights developments in the United Kingdom regarding foreign bribery enforcement actions.
As highlighted here, a director of PV Energy Ltd (Peter Virdee also known as Hardip Singh) was charged with bribing a foreign public official in that he allegedly bribed Asot Michael (a Member of Parliament and Government Minister of Tourism, Economic Development Investment and Energy for Antigua and Barbuda) to benefit PV Energy Ltd. PV Energy ltd was simultaneously charged with failing to prevent bribery in relation to the same offences.
What Should Happen When A U.S. Official Receives Bribes From A Foreign Company?
The U.S. has brought FCPA enforcement actions against U.S. companies for bribing foreign officials.
The U.S. has brought FCPA enforcement actions against foreign companies for bribing foreign officials (in some cases “domestic officials” as it relates to the foreign company at issue).
The U.S. recently enacted a new law – the Foreign Extortion Prevention Act – capturing the so-called demand side of bribery which provides a path for the U.S. to prosecute foreign officials who receive or demand bribe payments.