By Rachel Brewster & Christine Dryden
In the last twenty years, the United States government has put substantial resources behind the fight against foreign bribery by using the Foreign Corrupt Practices Act (FCPA) to prosecute unilaterally foreign and domestic companies who engage in corruption abroad. The United States is not entirely alone in this effort, but other countries have been far less vigorous in investing resources in investigations and prosecuting cases. Because of the unilateral and extraterritorial nature of FCPA prosecutions, these cases are sometimes controversial as foreign governments resist American influence in their commercial relations.
In response to this international tension, as well as a desire for a more robust global anticorruption regime, commentators have called for a centralized international court to address corruption issues. This proposal, however, is legally fraught and highly politically infeasible, and, thus, quite unlikely to succeed. Nonetheless, the future trajectory of an international anti-bribery regime remains an important question, which could have significant effects on the future of U.S. extraterritorial enforcement.
This Article provides an alternative and far more politically viable outline of the likely development of a multilateral approach to anticorruption enforcement. Drawing on the U.S.’s experience in international trade law, where the U.S. was also an early and unilateral enforcer, this Article discusses how a multilateral compromise that increases global enforcement can emerge. In doing so, it seeks to sketch out helpful parallels in conceptualizing the history and effect of the two approaches to combatting official and unofficial barriers to global markets. Rigorous, and sometimes controversial, U.S. enforcement of international trade law led to an institutional shift in the World Trade Organization from unilateral to multilateral enforcement. This Article contemplates the likely trajectory of the FCPA and the OECD Anti-Bribery Convention through the same lens. It argues that the global anti-bribery regime is poised to follow a similar but less formal path as developments in trade law, where continued U.S. FCPA prosecutions are likely to be leveraged into a flexible multilateral anti-bribery framework built on notions of complementarity. This multilateral framework involves more deference by U.S. prosecutors to foreign prosecutors but also leads to higher levels of global anti-corruption enforcement.
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