The chairman of the U.S. Securities and Exchange Commission, Jay Clayton, chose a speech in September to the Economic Club of New York to argue that when it comes to enforcement of anti-corruption laws, the United States is “acting largely alone.” He cited figures to back his stance and followed up by calling on other nations to follow the U.S. lead in tackling what is an international problem.
But does his viewpoint stand up to serious scrutiny? Only to a very limited degree.
His view that the United States has spent more than two decades “vigorously” enforcing the Foreign Corrupt Practices Act (FCPA) is a valid enough point. In the past five years or so, the SEC has brought more than 70 FCPA-related cases – and these cases have involved misconduct more than 60 countries. So there is no doubt the FCPA is a strong piece of legislation and the United States is far from shy when it comes to enforcing it.
But what about the SEC chair’s claim that the United States is “acting largely alone;” especially as he argues that other countries are taking advantage of U.S. efforts to tackle bribery and corruption? The United States has, for many years, been one of a relatively small group of nations prepared to investigate bribery but the view that somehow everyone else is freeloading is unfair.
That view is based on the argument that because other countries do not have strong anti-bribery legislation, U.S. companies bidding for work abroad are up against foreign rivals who are not bound by legislation as far-reaching as the FCPA; meaning the U.S. companies are at a disadvantage when trying to clinch deals. But should that not be a reason for the United States to work closer with other nations to eradicate bribery rather than criticizing them for what the SEC chair sees as a lack of effort?
As markets have evolved, so have enforcement practices outside the United States.
If we take the UK as just one example, the Serious Fraud Office (SFO) uses a multi-disciplinary approach to investigating bribery and corruption. Forensic investigators, lawyers and computer specialists work together for maximum effectiveness. The SFO also works with other UK agencies – not to mention national and international enforcement agencies – to tackle bribery and corruption.
The SFO is also encouraging a culture of co-operation and self-reporting among corporations. Avoiding prosecution via a deferred prosecution agreement – as was the case with Rolls-Royce – is now a possibility.
In the Bribery Act, the UK has a more far-reaching piece of legislation than the even the FCPA.
And unexplained wealth orders are just one in a series of measures available to UK authorities when it comes to targeting the assets of those suspected of being corrupt.
These are all reasons why Mr. Clayton would be wrong to lump the SFO – and by extension, the UK – with those countries he sees as falling short when it comes to tackling bribery and corruption.
But it would also be wrong to think the UK is the only nation taking a more aggressive approach to tackling bribery. Anti-corruption laws may vary significantly from jurisdiction to jurisdiction but many countries are now working harder to combat bribery. Corruption has been made the subject of agreements from bodies as sizable and varied as the Council of Europe, the United Nations, and the Organization for Economic Co-operation and Development.
In today’s world, the claim that the United States is “acting largely alone” when it comes to anti-corruption enforcement seems, at best, shortsighted.