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.
As highlighted in this recent post, U.S. Congressman Enrique Roberto “Henry” Cuellar (D-TX) and his wife, Imelda Cuellar, were criminally charged with participating in two schemes involving bribery, unlawful foreign influence, and money laundering.
According to the DOJ, Cuellar and his wife “agreed to and did accept at least $598,000 in bribes from two foreign entities: Foreign Oil Company-1, an oil and gas company wholly owned and controlled by the Government of Azerbaijan, and Foreign Bank-1, a bank headquartered in Mexico City, Mexico.”
Recognizing that the case against Cuellar are just allegations at this point, it is interesting to think about the above dynamics when the reverse happens – when a U.S. official allegedly receives bribes from a foreign company.
Azerbaijan has a law prohibiting corruption of foreign public officials (see here).
So does Mexico. In fact, Mexico is a country member of the OECD Convention on Combating the Bribery of Foreign Public Officials in International Business Transactions (see here).
Will Azerbaijan bring an action against the Azerbaijan oil and gas company that bribed Cuellar? What about the specific individuals at the company who made or authorized the bribe payments?
Will Mexico bring an action against the Mexican bank that bribed Cuellar? What about the specific individuals at the company who made or authorized the bribe payments?
What if other countries follow the U.S. and enact laws similar to FEPA to capture the demand side of bribery? If Azerbaijan and Mexico had a FEPA-like law, should those countries prosecute Cuellar even though he is being prosecuted in his “home” country?
When an act of bribery occurs – whether it involves a foreign official or a U.S. official – how many prosecutions should be brought? What type of prosecutions? By which country?
All interesting questions to ponder.
Here is another question to ponder.
When foreign bribery occurs, some assert that a primary victim of the conduct are the citizens of the country of the foreign official bribed. Pursuant to this theory, some want payments from enforcement action settlement amounts to be made to the victims – whether directly or indirectly through funding community projects in the country at issue.
While I am not a resident of Cuellar’s congressional district, I am a U.S. citizen.
Does that make me a victim of Cuellar’s alleged offenses? Is my community deserving of a new park, funding of a community project, etc?
