Since the FCPA Blog started tracking the ten biggest FCPA enforcement actions more than six years ago, most companies appearing on the list have been from outside the United States.
Currently on the list of the biggest FCPA cases of all time are Siemens (Germany), Alstom (France), BAE (UK), Total SA (France), VimpelCom (Holland), Snamprogetti Netherlands B.V. / ENI S.p.A (Holland/Italy), and Technip SA (France).
Here’s the point. When FCPA critics say the law unfairly puts American companies at a disadvantage, they’re wrong. Because they’re missing the huge impact enforcement against foreign companies has had.
The modern era of FCPA enforcement started with the $800 million action against Siemens in late 2008. That case shocked the big foreign companies who operated in a culture of systemic bribery.
Since then, the parade of big FCPA enforcement actions against foreign companies has continued to erode the complacency. Every year more companies outside the United States adopt real compliance programs, from the global behemoths to the local shops deep in the supply chain.
On a national level, the FCPA has led once-recalcitrant countries to enact and enforce their own anti-bribery laws. French companies appear three times on the current FCPA top ten list. This month France adopted legislation against overseas bribery. Holland is on board with big-time enforcement. The UK Bribery Act, just five years old, is impacting international business on a scale similar to the FCPA.
The FCPA also works on a personal level. Younger generations of bankers and business people and the professionals who support them don’t want to be corrupt. They want to be ethical. Talk to them — in Indonesia, Brazil, China, Nigeria, Hungary, Colombia, and so on. The grassroots culture shift from crooked to clean is obvious.
The FCPA is the reason. It explodes very publicly the myth that international business has to be dirty and that only bent executives and professionals can prosper.
Tom Firestone, who served for eight years as the DOJ resident legal adviser at the U.S. Embassy in Moscow, said he watched the emergence of a compliance culture in Russia, of all places.
[B]y 2013 Russia had adopted a law essentially requiring companies to have compliance programs. The current Russian-language version of Wikipedia contains an entry on “komplayens” (in Cyrillic transliteration), which states: “Today, compliance with standards (komplayens) is an area of professional activity that has been brought to Russian organizations by major Western companies.”
While working at Embassy Moscow, I taught classes on the FCPA for a local law school that offers a U.S. master of laws (LLM) degree. The classes were attended primarily by young Russian lawyers working in Russian companies or law firms, or Russian branches of international companies and law firms. After lectures, students often approached me with questions about the FCPA implications of transactions that they were working on. On several occasions, they told me that they had used what they learned in the course to persuade their clients or employers not to proceed with possibly corrupt transactions. In other words, bribes were not paid because of the FCPA.
My experience — first as a lawyer and now as editor of the FCPA Blog — has mirrored Firestone’s. Young people from nearly every “high-risk” country have told me how the FCPA inspired them to believe the fight against graft is worthwhile and winnable. They’re right.
So the next time someone says the FCPA hurts U.S. business, don’t believe it. Remember instead how the FCPA is levelling the international playing field for every American who wants to do business in an ethical way.
That’s what real winning looks like.
Richard L. Cassin is the publisher and editor of the FCPA Blog.