Teaching the FCPA to Chinese practitioners provides quite a colorful glimpse into its real-world impact — its successes thus far, and its future prospects. The lawyers’ questions, always framed as hypotheticals, are creative to say the least. Sure, they’re trying to find a workaround. But that they’re even trying — that the importance of complying with bribery prohibitions is slowly embedding in their thinking — is itself quite remarkable. It’s historic.
Indeed, China is now enacting an array of anti-bribery reforms that few anticipated even a few years ago. The country is but the most prominent example of changing global attitudes toward corruption. And let there be no doubt that the U.S. enforcement effort deserves much of the credit. Fisher, Mendelsohn, Duross, and their DOJ/SEC colleagues have have truly made their mark here, permanently and for the better.
But China, like most of the world today, is yet in the throes of transformative change. As one student remarked “We are an ancient civilization, but the ancient values have eroded. And the modern values have not yet taken hold.” The ultimate outcome of this change remains to be seen.
What role will the U.S. play? If we care which direction the developing world takes, how can we best promote our best values?
The president of a major Indian conglomerate once told me, “the strongest force for reducing corruption in India will not be anything the Indian government initiates. It will be Indian businesses, and the Indian bureaucracy, working with companies that are subject to the FCPA.”
Such is the most noble aim of the FCPA reform agenda. We should promote transparency and good governance in countries now historically poised to embrace it. And we can do so only to the extent that we’re out there in the world, doing business, complying with the anti-bribery law.
So let’s focus the reform effort on increasing the total volume of ethical business in the world. Find new ways to legitimately bring more foreign companies into its jurisdiction; we can’t wait for other governments to do so. Don’t discourage FCPA-compliant companies from acquiring foreign bribe-payors; get rid of pre-acquisition criminal liability, but diligently impose it post-acquisition. And we should incentivize companies to do everything in their power to prevent bribery while conducting business; to do that, we’ve got to codify the compliance defense.
When we enacted the world’s first statute criminalizing overseas commercial bribery, most everyone thought we were crazy. Nobody thinks we’re crazy now. But the world continues to change, and it’s time for us to change with it, just as we’ve done before. The U.S. Congress invented this law, and the U.S. Congress can now make it right.
Andy Spalding is a contributing editor of the FCPA Blog. He teaches international business law at the Chicago-Kent College of Law. Effective June 1, he’ll be an Assistant Professor at the University of Richmond School of Law. He’s just returned from Beijing where he taught a two-week course on International Business Transactions to a group from the Beijing Lawyers Association. He can be contacted here.
We’re grateful to Professor Spalding for allowing us to serialize ‘Beyond Balance.’