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Facts First

factsfirst

This recent article authored by a law professor and law student in Foreign Affairs titled “The Fight Against China’s Bribe Machine: The Pitfalls of Conducting U.S. Foreign Policy Through the Courts” is full of false information.

For instance, the article asserts that “as president, Trump tried to weaken the enforcement of the FCPA.”

Facts first.

During the Trump administration corporate Foreign Corrupt Practices Act enforcement was above historical averages. (See here). In terms of individual criminal actions, FCPA enforcement during the Trump administration was significantly above historical averages. (See here). In terms of overall corporate settlement amounts, 2019 was the largest year on record, only to be eclipsed by FCPA enforcement in 2020. (See here).

The article next asserts:

“Now President Joe Biden has reversed course and formally designated foreign bribery—traditionally a regulatory and criminal issue—a national security concern.”

In part, that statement is factual because FCPA enforcement thus far during the Biden administration has reversed course and with approximately two months remaining in 2021, FCPA enforcement is significantly below recent historical averages. However, as noted in this post, viewing FCPA enforcement through the lens of a few months (even 9 months), in a new administration, during the COVID environment is not very meaningful.

As to the above statement, and as highlighted in this prior post, U.S. government officials have long maintained that Foreign Corrupt Practices Act enforcement (one way in which the U.S. government attempts to address corruption) is necessary to protect national security.

The article then asserts:

“Meanwhile, post–Cold War changes to the FCPA have extended its extraterritorial reach to foreign entities whose illegal conduct only tangentially touches U.S. territory. Specifically, Congress amended the FCPA in 1998 to capture “any act in furtherance of” an illegal bribe while in the territory of the United States, regardless of whether the perpetrators were American.”

This is a factually false statement.

The FCPA’s anti-bribery provisions are not extraterritorial as to foreign actors (even the quoted language above mentions a U.S. nexus).

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