Enforcement is a greater deterrent, in my opinion, if directed at both corporations and individuals.
While corporations are legal persons, they are typically incorporeal. They rely on natural persons (employees, agents or officers) to act on their behalf. For the same reason, they rely on people to design, implement, review and adhere to anti-corruption controls.
If enforcement is directed singularly at a corporation, its officers — who probably have strict performance targets to meet — will not have a disincentive to refrain from improper conduct.
If only the corporation’s agents and employees are targeted, the shareholders through their board representatives may not have an incentive to commit resources to erecting barriers to improper conduct.
What deters overseas bribery? Balanced enforcement that targets culpable employees and agents and the companies they act for.
Michael Ndichu Kuria is a contributing editor of the FCPA Blog.