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Tweet to Defeat Government Bribes: Limiting Extraterritorial Jurisdiction under the Foreign Corrupt

Congress enacted the Foreign Corrupt Practices Act (FCPA) in the 1970s to address the rampant bribery of foreign officials by US companies. Because that resulted in a competitive disadvantage to US companies in the global corporate community, Congress amended the Act to add § 78dd-3, which extended the FCPA’s jurisdiction to foreign entities and individuals whose alleged offenses had occurred within the United States. This led to a vast overall increase in enforcement matters, but foreign entities and individuals have been impacted the most, even if their actions have had virtually no connection to the United States. Not only have current enforcement patterns risked the reputation of the United States by infringing on other states’ sovereignty, but they have also resulted in increased costs to US agencies. This Note addresses these issues by discussing the historical evolution of the FCPA and potential future enforcement patterns by the Trump administration. It then rejects the recent enforcement patterns and advises President Trump—as well as future administrations—to adopt more strategic enforcement practices. Specifically, it argues that the Trump administration should read § 78dd-3 literally and ban FCPA matters against foreign entities and individuals whose actions have virtually no connection to the United States. It also argues that President Trump and his senior officials at the State Department should engage in public diplomacy to tackle global corporate corruption. Finally, it suggests that President Trump invoke the OECD Convention to aid his public diplomacy campaign.

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