Four Unchartered Corners of Anti-Corruption Law: in Search of Remedies to the Sanctioning Effect
28 Pages Posted: 7 Sep 2012
Date Written: April 4, 2012
This Article is the third installment in a long-term research project that examines the effects of the U.S. Foreign Corrupt Practices Act in relation to its underlying policy goals. It first reiterates the various data points showing that enforcement now has the unintended effect of reducing investment in higher-corruption markets. Because this amounts to the withdrawal of capital from developing countries in protest of their political conditions, I call this the “sanctioning effect.” The paper then seeks to push the envelope of current anti-bribery debates by exploring connections to four fields of academic inquiry not typically associated with the FCPA. First, this Article argues that the FCPA deserves a prominent place in the broader securities law discussion of the “bonding thesis,” which examines why foreign companies enter U.S. capital markets despite higher costs and liability. The Article explains that because entering the U.S. capital markets triggers jurisdiction over foreign companies, securities laws that are designed to induce such listings can help remedy the sanctioning effect. Second, the Article explores the principle, recently adopted by the Obama Administration, that corruption is properly understood as a human rights issue. It argues that truly embracing this principle as the cornerstone of our anti-corruption agenda would transform FCPA enforcement. Third, the paper shows that the theories of criminal punishment that explain the current enforcement regime are general deterrence and incapacitation, and that these compound the sanctioning effect. It then draws on the contemporary restorative justice debate to begin sketching the contours of an alternative paradigm. Finally, the Article describes several examples of foreign policy concerns dramatically altering FCPA enforcement outcomes and suggests that a more coherent and transparent treatment of the FCPA's foreign policy implications may require establishing a new federal office. The paper provides a preliminary mapping of these uncharted corners in anticipation of future academic (ad)ventures.
Keywords: FCPA, Foreign Corrupt Practices Act, Bribery, International Business
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