Author Archives: Sam Birnbaum

Should FCPA Enforcers Focus on Corruption in the Poorest Countries?

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A few months ago, the Wall Street Journal published an interview with Charles Duross, the current Morrison & Foerster partner who up until last February led the U.S. Justice Department’s Foreign Corrupt Practices Act Unit. Among the interview’s most interesting revelations was Duross’s description of how he set enforcement priorities. When asked about likely future priorities Duross provided this response:

To be clear we do prioritize cases, based on the significance of the case. For example how big are the bribes? Are we talking about $100 million or $100? But in terms of saying “I have decided what we’re going to do is look at X industry or everybody that’s going to be dealing with this country or this region, and we’re going to scrub those folks in particular,” I don’t think we do that.

Although Duross may well be correct that DOJ doesn’t target particular countries or regions, there is some evidence that FCPA enforcement does disproportionately involve particular kinds of countries–in particular, poorer countries and countries with poorer governance. A working paper by Stephen Choi and Kevin Davis (which Matthew also discussed in a recent post) found that “aggregate total monetary sanctions related to a particular violation country, controlling for the overall bribe level in that country, is greater for countries with a lower GNI [gross national income] per capita, as well as weaker government effectiveness and rule of law scores.” What to make of this? Is it true that companies are penalized more heavily (controlling for the size of the bribe) when they pay bribes in poorer countries with less effective legal systems? If so, is this desirable?

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Why FCPA Opinion Procedure Releases Are Broken and How to Fix Them

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A couple months ago there was a rare sighting in the world of the Foreign Corrupt Practices Act (FCPA): a Department of Justice (DOJ) opinion procedure release. If you have no clue what an opinion procedure release is, don’t feel bad – if you aren’t an FCPA specialist, there’s a good chance you’ve never heard of them. Under 15 U.S.C. § 78dd-1(e), the DOJ is required to establish a procedure to provide advisory opinions to companies on whether contemplated conduct would conform with FCPA requirements. Regulations promulgated under this provision established “opinion procedure releases” – non-binding, public guidance opinions that provide companies with an indication of how the DOJ would treat a particular action. The releases are quite rare, however. Only 38 have been issued since 1993, and only four have been issued since 2012.

It’s probably fair to say that opinion procedure releases aren’t serving the purpose Congress originally intended for them. Congress presumably recognized that because the FCPA’s provisions are vague and consequences of violation can be severe, businesses require a way of ensuring that their contemplated conduct is within legal bounds. These concerns are even more pressing in 2014 as they were when the FCPA was passed in 1977, given that the DOJ and SEC are attempting to expand the FCPA’s reach through creative legal arguments, and multinational companies expanding into emerging markets that present new cultural and legal challenges. Companies constantly complain about legal uncertainty under the FCPA, yet the statutory mechanism designed to alleviate this problem is hardly used. Why? Continue reading →

Could FCPA Investigations Influence International Arbitration?

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Is it possible for violations of the Foreign Corrupt Practices Act (FCPA) and other domestic anti-corruption regimes to influence the outcomes of international investment arbitrations? In my last post, I showed how allegations of corruption could be relevant in investment treaty arbitration, both as a “sword” wielded by investors, and as a “shield” used by sovereign states. In this post, I consider how evidence from domestic anti-corruption proceedings could be used in arbitration, and what effects its use might have on the international system. Continue reading →

Do Investment Arbitration Treaty Rules Encourage Corruption?

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Is it possible that current investor-state arbitration rules actually encourage states to tolerate corruption? A terrific 2012 note by Zachary Torres-Fowler in the Virginia Journal of International Law raises that question. Here’s the gist of his argument: According to the widely discussed arbitral decision in World Duty Free v. Kenya, states in investment treaty arbitration can escape liability by proving that the aggrieved investor engaged in corrupt activities in connection with the investment under dispute–even if senior state officials were full participants in the corrupt transaction. That being the case, states that receive inbound foreign investment have a perverse incentive to tolerate corruption in the officials who deal with foreign investors, because that corruption may help shield states from legal liability should the state subsequently renege on its agreement with the investor. This is a great insight, and one which I think could actually be expanded a bit further.

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