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:

  • A Venezuelan company (a subsidiary of a Spanish company) interacts with its own “domestic officials” in Venezuela;
  • A Colombia company interacts with its own “domestic officials” in Colombia;
  • A Brazil company interacts with its own “domestic officials” in Brazil;
  • A South Korea company interacts with its own “domestic” Korean officials;

as well as numerous other examples.

Given this reality, as well as the specific provision in Article 4 of OECD Convention that “when more than one Party has jurisdiction over an alleged offence described in this Convention, the Parties involved shall, at the request of one of them, consult with a view to determining the most appropriate jurisdiction for prosecution,” can it truly be said that the U.S. was an appropriate jurisdiction to prosecute these foreign companies for alleged interactions with non-U.S. officials?

From a historical perspective, it is worth noting that part of the FCPA reform discussion in the 1980’s were bills – introduced by Democrats – seeking to waive the FCPA’s provisions “in the case of any country which the Attorney General has certified to have (1) effective bribery or corruption statutes; and (2) an established record of aggressive enforcement of such statutes.” (See S. 1797, Competitive America Trade Reform Act of 1985, introduced on October 29, 1985 by Senator Gary Hart (D-CO) and H.R. 3813, Competitive America Trade Reform Act of 1985, introduced on November 21, 1985 by Representative Vic Fazio (D-CA)).

This recent post highlighted the DOJ’s stated justifications for dismissing FCPA and related charges in the Adani, et al enforcement action.

Among the reasons cited by the DOJ were:

“This is a foreign case. The first two pages of the indictment tell the story: several Indians (with maybe a European or two) allegedly tried to bribe other Indians by paying the Indian government via complex Indian rebate programs to get Indian contracts to provide Indian electricity to Indians in India. Ctrl-F “India” in the indictment, and it’ll show well over 200 hits. The United States pretending to be the world police can cause diplomatic strife and also wastes resources better spent on domestic concerns. India can better manage its internal systems than can prosecutors in Brooklyn and Washington.”