Essays in Political Economy
Edited by Susan Rose-Ackerman and Paul Lagunes
Chapter 12: Regulation of foreign bribery: the FCPA enforcement model
The first phase in the global campaign to regulate foreign bribery is nearly complete. There is now a broad international consensus in favor of prohibiting bribery of foreign public officials, as evidenced by the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the United Nations Convention against Corruption. The next phase of the campaign requires analysts to step back to analyze the impact of these prohibitions with a view to determining whether additional interventions are required (see for example, Hines 1995; Cuervo-Cazurra 2008). It seems intuitive that the effects of prohibitions on foreign bribery depend on the strategies used to enforce them, that is, the cases pursued and the sanctions imposed. Those strategies are undoubtedly determined to some extent by the amount of resources devoted to enforcement as well as, of course, the strategies that firms adopt in response. What is less well understood, especially outside of legal circles, is that basic features of the underlying legal system also influence enforcement strategies in subtle yet important ways. This chapter examines how distinctive features of the US legal system have shaped the overall approach to enforcement of the prohibition on foreign bribery found in the United States’ Foreign Corrupt Practices Act of 1977 (FCPA).
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