Bribery in the global market: a critical analysis of the Foreign Corrupt Practices Act

Abstract

Over the past twenty years, the US has adopted and refined rigorous legislation to curb the payment of bribes by US companies. Through the Foreign Corrupt Practices Act of 1977 as amended in 1988 (FCPA), payment of bribes abroad by US businesspersons has become a crime subject to incarceration, fines, or both. Congress passed the FCPA with the best of intentions. Unfortunately, Congress's admirable goals cannot salvage the FCPA. Bribery has continued to thrive during nearly two decades of the legislation's existence, and prosecutions have been rare. While the FCPA appears to have had little effect in reducing global corruption, it has yielded untoward side effects. Because of the FCPA's vagueness and the complexity of the international contexts in which it operates, the FCPA has a chilling effect on legitimate transactions. Moreover, the FCPA engenders worldwide hostility for its insupportable invasiveness into local sovereign autonomy. Finally, because the nuances of varying practices around the world must be understood in cultural context, the FCPA's bluntness subjects Congress's efforts to justifiable charges of ethnocentrism and moral imperialism. It is proposed that Congress abolish the FCPA, and the US cease efforts to persuade other nations to enact their own versions of the FCPA.