Bridging the Cultural Gap in International Arbitrations Arising from FCPA Investigations
June 7, 2017
FORDHAM INTERNATIONAL LAW JOURNAL Vol. 39:829
In recent years, regulators around the world have increased their focus on investigating and prosecuting corporate corruption. Many governments have recently adopted or enhanced their domestic anticorruption laws, including the United Kingdom, Germany, Spain, Brazil, Canada, China, and Mexico. In March 2016, the French government will consider the adoption of a new criminal statute creating deferred prosecution agreements in France. In the United States, the Department of Justice (“DOJ”) and the Securities and Exchange Commission (“SEC”) have maintained anti-corruption enforcement as a high priority, initiating scores of investigations and obtaining hundreds of millions of dollars in penalties under the Foreign Corrupt Practices Act (“FCPA”). Multiple public statements made by DOJ and SEC officials have left no doubt that this emphasis will continue in the future.
Against this backdrop, corrupt payments by third-party representatives such as agents, distributors, or consultants are one of the largest and most uncertain risks to companies that are subject to the FCPA or anti-corruption laws of other countries. When such corrupt payments do occur, United States regulators have made clear that a corporation’s timely and voluntary disclosure of wrongdoing and its willingness to cooperate in an investigation are factors they consider in deciding whether to commence, decline, or otherwise resolve a FCPA matter. The DOJ and the SEC similarly consider the extent to which the company has identified and disciplined the individuals responsible for the corporation’s alleged malfeasance.Download the full essay here.