Incentivizing Corporate America to Eradicate Transnational Bribery Worldwide: Federal Transparency and Voluntary Disclosure Under the Foreign Corrupt Practices Act

Abstract

In 1977, it was discovered that hundreds of U.S. companies had spent hundreds of millions of dollars in bribes to improve business overseas. In response, Congress passed the Foreign Corrupt Practices Act (FCPA), thereby making it illegal to bribe foreign officials to obtain a business advantage. A major tension has emerged between the federal agencies charged with enforcing the FCPA (i.e., the DOJ and SEC), and the corporate entities trying to stay within the legal and regulatory bounds of the statute. Specifically, while the government appears to be trying to maximize discretion and flexibility in carrying out its enforcement duties, companies are calling for more transparency and guidance. Unfortunately, the government’s FCPA Resource Guide, published in 2012 to provide the public with more direction, fails to shed enough light on how to successfully conform to this complicated statute.

This Article focuses in particular on the difficult and strategic decision of whether a company should self-report to the government a potential FCPA violation. After reviewing the advantages and disadvantages of self-reporting, the Article concludes that the government needs to be more transparent and forthcoming regarding the potential benefits of doing so; it argues that the government must provide greater transparency regarding specific and calculable benefits that can be achieved through self-reporting and cooperation in the face of possible FCPA violations. The Article concludes that companies will be more likely to self-report such violations — and thereby assist in eradicating the scourge of transnational bribery worldwide — only if there is more certainty that the benefits achieved from self-reporting will outweigh the risks and costs involved.

Keywords: FCPA, Corporations, Criminal Law, International Trade & Regulation, ADR