Of the myriad laws imperiled by Donald Trump’s election, few keep lawyers busier than the Foreign Corrupt Practices Act. For more than a dozen years, since the Sarbanes-Oxley Act ramped up disclosure and the U.S. Department of Justice staffed up its fraud section, the U.S. has vigorously played the role of global corruption cop. Can America remain an apostle of integrity under Trump? Opinion is divided.
Trump’s most direct signal (he doesn’t really do indirect) was to call FCPA a “horrible law” on CNBC in 2012. That should come as little surprise given his obsession with U.S. companies “winning,” and his disdain for moral niceties. In a much-remarked post on the Global Anticorruption Blog, Matthew Stephenson of Harvard Law School proclaimed that “the era of vigorous FCPA enforcement … is over.” Professor Stephenson sees a grave risk that U.S. prosecution will become more politicized for both global and domestic bribery. “I’d be shocked if the US maintained anything like its current level of FCPA enforcement,” he wrote.
On the other hand, the FCPA will almost surely stay on the books, and Preet Bharara, who’s no friend of white-collar criminals, will remain U.S. attorney in the Southern District of New York. Although Jeff Sessions dislikes deferred prosecutions, the attorney general-to-be has made strong statements on corporate crime. Any pressure to pull punches for political reasons would surely lead career prosecutors at both Justice and the U.S. Securities and Exchange Commission to take a moral stand. Peter Henning of the New York Times White Collar Watch thinks FCPA will likely “continue to thrive,” and Ata Farhadi of the Lateral Link consultancy predicts that “FCPA will continue to be a hot area.”
For the sake of argument, let’s assume that Stephenson is right and the era of strong FCPA enforcement is over. In my last column on corporate responsibility, and in a column on transparency to be published in the January issue of The American Lawyer, I conclude that a U.S. retreat would have limited consequence in areas where the EU has already claimed the mantle of regulatory leadership. Multinationals will continue to observe the norms of transparency and corporate responsibility because they are usually set by the EU, and because many industries have adopted serious voluntary codes informed by the leading global regulatory standards. Unfortunately, none of this analysis applies to anti-corruption. The FCPA is irreplaceable.
It’s true that the Organisation for Economic Co-operation and Development’s (OECD) Anti-Bribery Convention—followed by 40 other nations—goes even further than the FCPA. But even the most committed OECD nations, led by Britain, only aspire to police their own companies’ corruption. In laying out its ”Current Direction and Enforcement Priorities,” the U.K. Serious Fraud Office stresses that “we will focus on those cases which risk the UK’s reputation as a safe place to do business.” It’s no coincidence that the most ambitious prosecutions outside the U.S.—Siemens in Germany and Petrobras in Brazil—were both collaborations with the U.S. to prosecute a local company. This is a function of both resources and philosophy. Only the U.S. has the legal staffing, and the idealism or arrogance, needed to police corporate corruption on a global scale.
What about self-regulation? The Swiss-based International Organization for Standardization had uncanny timing in releasing its new standard on corruption compliance—ISO 37001—three weeks before Trump’s election. ISO 37001 sets forth model policies for anti-bribery training, monitoring, due diligence, and the like. Some of its predecessors, such as ISO 26000 on social responsibility, are well-respected by both industry and civil society.
Regrettably, ISO 37001 has received mixed reviews. Jean Pierre Mean, general counsel of the Swiss logistics multinational SGS and a participant in the ISO process, praises it as “a comprehensive codification of best practices.” Yet Alexandra Wrage of the compliance group TRACE International is skeptical that something so subjective as anti-corruption can be meaningfully measured. It’s not like occupational safety, where you can just count the fire extinguishers.
Mike Koehler complains on the “FCPA Professor” blog that the ISO is a “yawner” because it merely duplicates the guidance provided by the U.S., U.K. and OECD. But ISO speaks the language of business compliance rather than legalese. And as Wrage notes, an independent standard is useful for companies allergic to Anglo imperialism.
At the critical extreme, Russell Stamets of Delhi’s Tatva Legal, derided ISO 37001 at a recent “FCPA Blog” conference as a platform for “karaoke compliance.” He fears that a tick-the-box approach to anti-corruption will enable cynical businessmen to go through the motions while avoiding genuine compliance. “It’s a wretched development that will set us back years,” he says tartly. “Asia will love it.”
Self-regulation at its best is only effective when it’s issued in the shadow of hard law that is seriously enforced. So can The Global Lawyer foresee a comeback of unbridled corruption for companies based in the U.S. or outside the OECD? Not quite. As long as the FCPA remains in force, greasy palms will be deterred by the threat of the U.S. returning to proper enforcement in the future. Anyone who yearns to make America corrupt again can do the math: a four-year presidential term is shorter than a five-year statute of limitations.
The Global Lawyer is a regular column by senior international correspondent Michael D. Goldhaber. He can be reached at firstname.lastname@example.org. On Twitter: @TheGlobalLawyer.