Was Milton Gwirtzman Right? Is He Still Right?
The February 10th Executive Order “pausing” FCPA enforcement mentions the following.
“The President’s foreign policy authority is inextricably linked with the global economic competitiveness of American companies. American national security depends in substantial part on the United States and its companies gaining strategic business advantages whether in critical minerals, deep-water ports, or other key infrastructure or assets.”
This is a fairly obvious statement that has long been true.
This post rewinds the clock to 1975 and highlights how Congress wrestled with the same general issues 50 years ago when enacting the FCPA.
Sometimes The U.S. Government May Be The Root Cause Of FCPA Issues
As discussed in this recent Wall Street Journal article:
“The Biden administration is pushing hard for American businesses to invest in Africa despite the obstacles they face there, more than a decade after China began expanding its economic and political ties with countries across the continent.
Vice President Kamala Harris pledged [recently] in Ghana’s seaside capital to “double down” on efforts to bring billions of dollars in investments to Africa, a continent that many Western investors still view as high risk. Ms. Harris is the highest ranking in a string of top White House and Biden administration officials to travel through Africa this year, promising to unlock American investment as both the U.S. and China look to tap into the continent’s vast natural resources.
But U.S. and other Western investors often cite corruption, poor infrastructure and still rampant poverty, all of which preclude easily operating across dozens of countries that all have their own rules and market peculiarities.”
The above example is the latest example (see here, here and here for prior posts) of the U.S. government encouraging investment in a country – because it advances the U.S. government’s current foreign policy interests – while knowing full well that the country has corruption problems that could expose U.S. companies to FCPA issues.
Richard Shine’s 1982 Lecture – “Enforcement Of The FCPA By The Department Of Justice”
The year was 1982 and Richard Shine was Chief, Multinational Fraud Branch, Criminal Division, U.S. Department of Justice (the name given to the DOJ’s then de facto FCPA Unit). Shine gave a lecture titled “Enforcement of the FCPA by the Department of Justice” at Syracuse University that was published by the Syracuse Journal of International Law & Commerce – see 9 Syr. J. Int’l L. & Com. 283 (1982).
Three things stand out from Shine’s lecture.
First, the lecture is populated with references to the FCPA’s legislative history. On one level, this is not surprising given that in 1982 the DOJ was likely still finding its way as to the FCPA and its enforcement and it is logical that the legislative history – which evidences Congressional intent – would be a guide.
Thoughts On The “Combating Global Corruption Act Of 2017”
Recently Senator Ben Cardin (D-MD), along with Republican co-sponsors such as Senator David Perdue (R-GA) and Senator Marco (R-FL) and others, introduced a bill titled the “Combating Global Corruption Act of 2017.”
As stated in the preamble, the bill seeks “to identify and combat corruption in countries, to establish a tiered system of countries with respect to levels of corruption by their governments and their efforts to combat such corruption, and to assess United States assistance to designated countries in order to advance anti-corruption efforts in those countries and better serve United States taxpayers.” Corruption is defined as “the exercise of public power for private gain, including by bribery, nepotism, fraud, or embezzlement.”
This post provides a summary of the bill and offers two thoughts regarding the bill relevant to the Foreign Corrupt Practices Act.
Why The Odebrecht / Braskem FCPA Enforcement Action Is Unique (And Interesting)
The Foreign Corrupt Practices Act enforcement action last week against Odebrecht / Braskem was unique – specifically the DOJ’s and SEC’s bribery charges against the companies relating to conduct with alleged Brazilian “foreign officials.”
What makes it unique is that it is believed to be the first FCPA enforcement action in history against a foreign issuer for allegedly bribing its own domestic officials. In other words, a large portion of the U.S. enforcement action against the Brazilian companies is that they bribed Brazilian officials.
All previous FCPA enforcement actions against foreign issuers have not addressed this dynamic. In other words, German companies Siemens and Daimler did not bribe German officials; French companies Alstom, Total and Technip did not bribe French officials; Japanese company JGC did not bribe Japanese officials, etc., etc.