In my research across the developing world, I’ve heard a common complaint. They’d ask, in an angry tone, “when the DOJ reaches multi-million dollar settlements for conduct that occurred in my country, where does all that money go?” The answer, embarrassingly, is the U.S. Treasury. But that does not reach the true victims of bribery — the members of the communities in which the harmful corporate conduct occurred — and the BP settlement proves that it need not be so.
As the DOJ’s own press release stated,
“The criminal resolution is structured such that more than half of the proceeds will directly benefit the Gulf region. Pursuant to an order presented to the Court, approximately $2.4 billion of the $4.0 billion criminal recovery is dedicated to acquiring, restoring, preserving and conserving — in consultation with appropriate state and other resource managers — the marine and coastal environments, ecosystems and bird and wildlife habitat in the Gulf of Mexico and bordering states harmed by the Deepwater Horizon oil spill. This portion of the criminal recovery will also be directed to significant barrier island restoration and/or river diversion off the coast of Louisiana to further benefit and improve coastal wetlands affected by the oil spill. An additional $350 million will be used to fund improved oil spill prevention and response efforts in the Gulf through research, development, education and training.”
Couldn’t we, shouldn’t we, do the very same thing with major anti-bribery cases? The Wal-Mart investigation may well yield evidence of bribes paid to circumvent environmental, safety, and zoning regulations across the developing world. And the communities where Wal-Mart’s bribes were paid — in Mexico, Brazil, India, and China, among other places — were undoubtedly harmed. Granted, those governments’ corrupt bribe solicitors share a substantial part of the moral, if not legal, culpability. But the citizens of the harmed communities do not.
So let’s get creative. Let’s do something of real value with the tens, or sometimes hundreds, of millions of dollars collected in big-ticket anti-bribery cases. Wal-Mart may well be the BP of anti-bribery enforcement. Here’s hoping that proves true in more ways than one.
Andy Spalding is a senior editor of the FCPA Blog.