That Sounds Familiar
For many years, this site has documented how much of the largeness of corporate Foreign Corrupt Practices Act enforcement has been the result of enforcement actions against companies located in countries that – like the U.S. – are also parties to OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Convention).
(see here, here, here, here, here, here, here, here and here)
The question has been posed what legitimate U.S. law enforcement interests are implicated when for example:
Former OECD Officials Want A Resumption Of “Vigorous Enforcement”
One reason Foreign Corrupt Practices Act (and related) enforcement has, in some instances, become unhealthy is because various actors pressure governments to bring more enforcement actions – seemingly regardless of the enforcement theory or the resolution vehicle used to resolve the action.
Such actors seem to prioritize quantity of enforcement over quality of enforcement.
One such group is the The Organization for Economic Cooperation and Development (OECD) and its Working Group on Bribery.
FCPA Enforcement Actions Against Foreign Companies From OECD Convention Peer Countries
As highlighted in this post, like prior years (see here, here, here, here, here, here, here and here) much of the largeness of 2024 FCPA enforcement resulted from corporate enforcement actions against foreign companies.
Specifically, of the 11 corporate Foreign Corrupt Practices Act enforcement actions in 2024, 5 (45%) were against foreign companies (based in many instances on mere listing of securities on U.S. markets or in a few instances on sparse allegations of a U.S. nexus in furtherance of a bribery scheme). Of the net approximate $1.28 billion in FCPA settlement amounts from 2024 corporate enforcement actions, approximately $772 million (approximately 60%) was from enforcement actions against foreign companies.
Such numbers are not unique to 2024.
FCPA Enforcement Actions Against Foreign Companies From OECD Convention Peer Countries
As highlighted in this post, like prior years (see here, here, here, here, here, here and here) much of the largeness of 2023 FCPA enforcement resulted from corporate enforcement actions against foreign companies.
Specifically, of the 14 corporate Foreign Corrupt Practices Act enforcement actions in 2023, 7 (50%) were against foreign companies (based in many instances on mere listing of securities on U.S. markets or in a few instances on sparse allegations of a U.S. nexus in furtherance of a bribery scheme). Of the net approximate $521 million in FCPA settlement amounts from 2023 corporate enforcement actions, $197 million (approximately 40%) was from enforcement actions against foreign companies.
What Should The Denominator Be?
Recently, the OECD Working Group on Bribery released this Phase 4 report on Canada’s implementation of the OECD Anti-Bribery Convention. The Phase 4 report “looks at the evaluated country’s particular challenges and positive achievements [and] also explores issues such as detection, enforcement, corporate liability and international cooperation, as well as covering unresolved issues from prior reports.”
The report of course is not written by computers, but real human beings and in the case of Canada’s Phase 4 report the lead examiners were prosecutors and ministry of justice officials from Austria and New Zealand. For starters, should Canada really care what prosecutors and justice officials from Austria and New Zealand have to say about Canadian law enforcement?
In any event, like most other OECD Working Group on Bribery country reports, Canada is criticized how not bringing more enforcement actions.