After a brief end-of-the-semester hiatus we’re picking back up our series on Wal-Mart’s victims. And we’re less than half-way through.
I argued in Part VI that we should think of corruption as violating a human right. It’s not just an issue of corporate governance; we must recognize bribery’s impact on the economic and legal development of the countries in which FCPA violations typically occur. And as Wal-Mart now reminds us, these are developing countries: Mexico, Brazil, India, China, places now at pivotal times in their economic and legal development.
But the curve-setter here really is the UK; they’ve spoken in soaring language about bribery’s true impact. In sentencing BAE, a UK judge declared that the “real victims” of that company’s bribery were “the people of Tanzania.” Then-Director of the SFO, Richard Alderman, publicly stated that the resolution of that enforcement action was “satisfactory . . . most of all for the Tanzanian people.” Likewise, in the Mabey & Johnson enforcement action, they again sounded this theme: “the SFO is committed to the victims of overseas bribery.”
Can the U.S. say the same? Time was, we could.
As we discussed in Part I the enactment of the FCPA was once inspired by concerns for building free and stable institutions in developing countries. It’s an interesting parallel to the UK, actually; there may be something about passing an anti-bribery statutes that focuses our collective attention on global welfare. But we saw in Part II that today, the U.S. enforcement agencies speak almost exclusively in terms of corporate governance.
I said almost. In our next posts, we’ll look at some under-appreciated but powerful examples of U.S. enforcement actions that did, indeed, expressly seek to make right by the victims, and not merely punish the transgressors. We lawyers do love precedents. We’ll look at those successful actions, and then look at a variety of proposals now on the table for helping victims. And we’ll chart out a promising path forward.
Andy Spalding is a senior editor of the FCPA Blog.