There are some things written about the Foreign Corrupt Practices Act that cause me to scratch my head. Whether it is false information, lack of historical context, or just plain lack of FCPA experience of the author, certain FCPA “scholarship” is lacking.
This article titled “Foreign Corrupt Practices Act: Path to Reduce Environmental Damage” which recently appeared in the American Journal of Management Science and Engineering caused me to scratch my head for a different reason: I don’t even understand what it is says.
Can someone please translate.
The introduction of the article states:
“Global warming, which planet Earth has undergone in recent years, has led to climate change, the effects of which have a negative impact on the whole world, so that, if there is no control over the emission of greenhouse gases, the scenario may become even worse.
Current studies show that these climate changes are expected to cause major changes worldwide: sea levels will rise, food production may fall and some species may be extinct.
In the last three years, climatologists have changed the definition of what they believe to be the “safe” limit of climate change. For decades, researchers have argued that the rise in global temperature should be kept below 2°C until the end of this century to avoid more serious consequences. However, the scientific community now agrees that, in fact, it is necessary to keep temperature increases below 1.5°C.
The most recent study published by Climate Action Tracker shows that until the year 2100: (a) if nothing is done, the global temperature will rise between 4.1 and 4.8°C; (b) following current policies, it will increase between 2.8 and 3.2°C; and (c) following the current promises of the States, which is less real every day, it will increase between 2.5 and 2.8°C [2], still distant from the necessary 1.5°C indicated as ideals, reason why The present investigation is justified, as it presents legal solutions to solve this huge problem.
Therefore, the problem addressed in this research was the way in which the legal system can lead society to contribute to the implementation of carbon neutralization measures, capable of curbing global warming, as a result of the intense industrialization process, population increase, urbanization and deforestation experienced in recent decades.
To this end, a study of the Foreign Corrupt Practice Acts – FCPA, the North American anti-corruption law, was carried out, which has fundamentals capable of, through a process of dynamogenesis, providing practical results for the reduction of environmental damage.
The investigation was carried out by means of a comparative study, using axiological rationality as the method of approach and, as a procedural method, critical analysis based on the reference system of economic analysis of Law, approached in a relational manner, indicating the efficiency of Law as an inducer of abstaining from harmful conduct to the environment.
Then, it brings considerations in relation to the proposed reference system and how it is applied, demonstrating the concepts of rationality and the role of Law as an inducer of conduct, in order to provide an adequate foundation for the continuation of the investigation.
The search for the ends of the American law progresses towards the apprehension of the interrelation of these institutes, vital core of the study, whose importance is unique for the verification of the consequences and validity of the application of the foundations of the FCPA for the reduction of environmental damages.
In the end, it was verified that the legal application of the foundations extracted from the FCPA, having as reference the economic analysis of the law, is capable of providing the reduction of environmental damages, through a process of dynamogenesis, capable of resulting in great commitment of the whole society.”
The FCPA specific portion of the articles states in pertinent part:
“The FCPA is an American legal instrument that presents anti-bribery clauses and on books and accounting records, with the objective of punishing corrupt practices and accounting fraud abroad. It is found in the title 15 – Trade and Negotiation, of the Federal Code of the United States of America, in the device §78m and following.
The purpose of the FCPA is in particular to curb two illicit business practices: bribery and accounting tampering. To this end, economic agents must maintain books and records that accurately reflect transactions, as well as maintain an adequate system of internal accounting controls.
The acts of bribery and corruption today are, in fact, the illegal acts of greatest expression in the field of law and with an expressive presence in the international and national context, causing damage to the socioeconomic development of nations victimized by such practices.”
[…]
Having as reference the main foundation of the FCPA, which is the accountability of agents who relate to their offenders, it is possible to create a legal scenario capable of resulting in the reduction of environmental damage, through the implementation of a modern legal framework that stipulates penalties for those related to companies that do any damage to the environment, which in practice will involve environmental inspection by the entire community.
The implementation of a legal mechanism in this sense, introduced in the legal system through a process of dynamogenesis, with social adherence to the values pursued through the law in its normative and institutional production, is favorable to the reduction of environmental damage.
[…]
The climate changes that have occurred in recent years, resulting from global warming due to the increase in the emission of greenhouse gases, have drawn the attention of governments around the world, in view of the already aware possibility of the occurrence of situations, for example: rising sea levels; the emergence and growth of deserts; the imbalance in ecosystems, resulting in new pests and diseases; the increase in hurricanes, typhoons and cyclones; heat waves, and the thawing of permafrost, permanently frozen soils in the Arctic region.
The control of the harmful effects of global warming depends on the adoption of a set of actions capable of assisting in this aim, such as the use of a legal framework capable of presenting a more efficient practical result.
The American Anti-Corruption Act (FCPA), which requires a high degree of compliance, is applicable to all economic agents that have a commercial relationship with the United States. Bearing in mind that the North American market is the largest consumer market in the world.”
The article concludes with the following word salad:
“It is concluded, therefore, that the FCPA has extraterritoriality capable of reaching economic agents around the planet, which is possible through a parallel legality attributed by the market. It follows from this that it has as its main aspect the responsibility of any person who relates to agents who violate the rules imposed by it.
It is also concluded that the economic analysis of the law, which takes into account the externalities, the rationality and the transaction costs, attributes to the Law the possibility of being a conduct inducer of the economic agents that participate in the global market. This is because, as demonstrated in this study, market players always seek the best personal position taking into account the observable legislation that falls on them, so that, through rationality, agents tend to abandon relationships that may be susceptible sanctions.
The targeted analysis of the institutes contemplated in the present research, which have progressed towards their integration, leads to the conclusion that the development of the legislation of the Nation States, based on the FCPA principles, having as reference the economic analysis of the law, may be able to provide a reduction in environmental impacts related to global warming, to the extent that agents will have joint and several liability in dealing with companies that contribute to such impacts.
This context, introduced in the legal order of the Nation States, through a process of dynamogenesis, with social adherence to the values pursued by the Law in its normative and institutional production, taking into account the aspects of rationality inherent to the economic analysis, may favor the reach of what is currently proposed by the scientific community with regard to increases in global temperature.
Therefore, it is recommended to carry out future research aimed at analyzing, for example, how it would be possible to expand social adherence to the values pursued by the Law of each Nation-State, in its normative and institutional production, with regard to the reduction increases in climate temperature in line with current scientific recommendations.”
