Uncharted boundaries of the US Foreign Corrupt Practices Act
| Published date | 07 October 2013 |
| Pages | 355-364 |
| DOI | https://doi.org/10.1108/JFC-04-2013-0024 |
| Date | 07 October 2013 |
| Author | Virginia Gallaher Maurer,Ralph Emmett Maurer |
| Subject Matter | Accounting & Finance,Financial risk/company failure,Financial crime |
Uncharted boundaries of the
US Foreign Corrupt Practices Act
Virginia Gallaher Maurer
Department of Management, University of Florida,
Gainesville, Florida, USA, and
Ralph Emmett Maurer
Freeman School of Business, Tulane University,
New Orleans, Louisiana, USA
Abstract
Purpose – This paper, presented at the 2012 International Symposium on Economic Crime,
Jesus College, Cambridge, identifies four serious problems that affect enforcement of the US Foreign
Corrupt Practices Act (FCPA) the awkwardness of using the prosecutorial system as a de facto
regulatory agency; the uncertainties imposed on corporate capital budgeting systems in determining
how much to spend on compliance; the paucity of judicial interpretation of the law, and thus
the interpretations of prosecutors as de facto law that may not be law; and the ambiguous
benefits of compliance with the law that leads to inadequate compliance. The paper aims to discuss
these issues.
Design/methodology/approach – The paper employs traditional legal research methodology,
analysing case law, statutory interpretation, legal literature, and textual analysis of aggregated
deferred prosecution agreements and non-prosecution agreements between the US Department of
Justice (DOJ) and national and multinational corporations between 2000 and 2011.
Findings – Several boundaries require clearer definition in US enforcement of the FCPA.
Research limitations/implications – The paper defines areas for fruitful comparative legal
analysis between enforcement of the US FCPA and enforcement of the UK Bribery Act of 2010.
Practical implications – The paper has practical implications for UK policy makers addressing
issues of the Bribery Act of 2010.
Social implications – The paper provides cautionary notes to public policy makers in the UK
as the Serious Fraud Office designs alternative prosecution approaches to enforce the Bribery
Act of 2010.
Originality/value – Other various signatory nations of anti-corruption treaties, and in particular the
UK, can benefit by observing the experience of the US DOJ’s enforcement regime and building more
clarity into implementing anti-corruption legislation.
Keywords Bribery and corruption,Economic crime
Paper type Research paper
Since 1977 US law has prohibited individuals and corporations over whom it has
jurisdiction from bribing government officials in foreign countries. Although the
Foreign Corrupt Practices Act[1] (FCPA) has long provided a platform for prosecuting
foreign bribery, it is only since the multilateral treaties of the 1990s[2], and specifically
the 1997 OECD treaty[3], that US Department of Justice (DOJ, or Justice) has enforced the
FCPA aggressively (Koehler, 2010; Westbrook, 2011). Most prosecutions of corporations
by the DOJ have not proceeded to trial (Koehler, 2010; Westbrook, 2011). Instead, Justice
has negotiated with suspects to resolve violations of the statute through deferred
prosecution agreements (DPA) and non-prosecution agreements (NPA). In a DPA,
The current issue and full text archive of this journal is available at
www.emeraldinsight.com/1359-0790.htm
Journal of Financial Crime
Vol. 20 No. 4, 2013
pp. 355-364
qEmerald Group Publishing Limited
1359-0790
DOI 10.1108/JFC-04-2013-0024
US Foreign
Corrupt
Practices Act
355
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