Implementing Global Anti-Bribery Norms: From the Foreign Corrupt Practices Act to the OECD Anti-Bribery Convention to the U.N. Convention Against Corruption

Abstract

The 35th Anniversary of the U.S. Foreign Corrupt Practices Act (FCPA) is an opportune time to reflect on the very successful globalization of values embodied in this remarkable statute. When the FCPA was first enacted in 1978, the U.S. stood alone in criminalizing bribes paid to foreign officials to obtain business abroad. By 2012, 39 major economic powers have ratified the OECD Anti-Bribery Convention and 165 nations are states parties to the U.N. Convention Against Corruption. This article briefly traces the normative justifications for the FCPA which evolved over the 35 years from the initial emphasis on efficient free market competition and morality to unfair competition and a desire to level the playing field. By 1998, democracy and development norms became additional standard justifications for the prohibition on bribing foreign officials to obtain business. Respect for foreign local laws governing gifts and entertainment of their own government officials was the statutory embodiment of this norm respecting the sovereignty of foreign governments. Most recently the understanding that strict anti-bribery law enforcement is central to the rule of law, and that corruption itself is a profound violation of human rights. The increasing importance of the Organization of Economic Cooperation and Development (OECD) Anti-Bribery Convention is also a tribute to the importance of the FCPA. The OECD Convention is modeled on the FCPA, and now binds 39 of the world’s most powerful economies to implement domestic laws prohibiting bribery of foreign officials to obtain business. Effective enforcement of anti-bribery law expanded beyond the U.S. to include Germany, which notably succeeded in major prosecutions in 2007-2008, and the U.K. which, after some initial difficulties, was able to prosecute British Aeronautics Corporation (BAC). Despite some weakness in prosecutions by the U.S. and the U.K., especially where national security or military procurements are involved, the OECD Working Group has effectively organized multi-jurisidicational prosecutions. The OECD Working Group, comprised of prosecutors from the 39 OECD jurisdictions, has very effectively worked to harmonize formal written laws governing bribery abroad. Through multi-lateral cooperation among networks of professional prosecutors, enforcement cooperation has been enhanced in several major cases. Perhaps as important as multi-lateral cooperation, multi-lateral competition amongst the 39 jurisdictions have proven an effective mechanism for prosecuting when domestic political hurdles might otherwise hinder effective law enforcement. The most recent major multi-lateral anti-corruption instrument, the United Nations Convention Against Corruption (UN CAC), is not modeled on the FCPA but shares similar underlying norms. It entered into force in 2005. With 165 States Parties and 140 Signatories as of December 2012, the UN CAC is the broadest global adoption of anti-corruption values.