JINA YU US GLOBAL TRADE DR. MALAWER Foreign Corrupt Practices Act and the OECD

The FCPA of 1977 was enacted principally to prevent corporate bribery of foreign officials. Encompassed conscious disregard and willful blindness Not intended to cover grease payments 1998 amendment implemented the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. Expanded scope of coverage to include some foreign persons and extended jurisdiction beyond the borders of the US. Overview

US National Interest In the competition-driven private sector, the United States has historically demanded a level playing field With FCPA and OECD signatories would be playing with the same sets of rules American corporations have argued that this legislation created an unfair disadvantage for American corporations in their efforts to export goods and services. Corruption is not a new problem…Its a human problem and it has existed in some form in almost every society Barack Obama, University of Nairobi, 2006

Effectiveness of FCPA Increases the perceived cost of bribery for businesses Resolution of cases through Non-Prosecution Agreements and Deferred Prosecution Agreements Questionable deterrent effect Possibly self-defeating in implementation Lack of transparency Inadequate measure of effectiveness

Policy proposal Encourage greater transparency in Non- Prosecution Agreement (NPA) and Deferred Prosecution Agreement (DPA) resolutions Increase scrutiny to determine effectiveness Encourage greater international cooperation Extradition, mutual legal assistance, mutual monitoring and enforcement Encourage Corporate Social Responsibility Emphasize limiting the bribery on the supply side in addition to demand side.

Sources Hess, David. Enhancing the Effectiveness of the Foreign Corrupt Practices Act Through Corporate Social Responsibility (2012). Ohio State Law Journal, Vol 73, No5. Hollingshead, Ann. OECD gives US FCPA a pat on the back.Financial Integrity and Economic Development Task Force. 21 October s-fcpa-a-pat-on-the-back/ s-fcpa-a-pat-on-the-back/ Sanyal, Rajib. Patterns in International Bribery: Violations of the Foreign Corrupt Practices Act. Thunderbird International Business Review. Vol. 54, No. 3, May/June Seitzinger, Michael. Foreign Corrupt Practices Act (FCPA): Congressional Interest and Executive Enforcement. Congression Research Service. 7 February