As is the case with the election of every new American President, businesses around the world have been waiting to understand the trade, business and regulatory policies of the new administration in the United States since November 2016. On the basis of his many campaign promises and his statements as a top business leader, President Donald Trump has caused some uncertainty in the corporate world. In May 2012, during a telephone appearance on CNBC, Donald Trump called the US Foreign Corrupt Practices Act (FCPA) a "horrible" and "outrageous" law and claimed that it put American businesses at a "huge disadvantage".
What does this mean for FCPA enforcement under the Trump
Administration?
Between 2012 and now, there have been several anti-bribery and
corruption efforts around the world with several countries having
significantly strengthened their anti-corruption regimes. The UK
has put serious effort into prosecutions under the UK Bribery Act.
France, Germany, Brazil and Mexico have implemented their own
anti-corruption laws, and others such as China and South Korea have
vigorously pursued corruption at the highest levels of
government.
More recently, Jay Clayton, President Trump's nominee for
Chairman of the Securities and Exchange Commission (SEC), stated at his
nomination hearing that there is "zero room for bad actors
in our capital markets" and that companies should think long
and hard about potential exposure to not just the FCPA but also
similar oversight and enforcement actions from other Organisation
for Economic Co-operation and Development (OECD) countries. This is
in addition to statements from senior Department of Justice (DOJ)
officials, including Trevor McFadden (Deputy Assistant Attorney
General in the Criminal Division) who said that the FCPA's
fight against official corruption is a solemn duty of the Justice
Department regardless of party affiliation.
Kenneth Blanco (Assistant Attorney General in the Criminal
Division) said that FCPA prosecutions are necessary to combat
global corruption that stifles economic growth and threatens the
national security of the United States, and that the Criminal Division
remains committed to doing its part by vigorously investigating and
prosecuting international crime when it violates US laws. In the same
speech, Blanco also announced an extension to the DOJ's
year-long "FCPA Pilot Program" to encourage companies to
self-report bribery violations and to cooperate with the ensuing
investigations in exchange for reduced penalties and, in some
cases, declinations to prosecute.
The DOJ also issued new guidance on corporate compliance programmes
in February 2017, following the confirmation of the new Attorney
General, Jeff Sessions. This guidance includes a list of important
topics and sample questions it uses while evaluating the
effectiveness of corporate compliance programmes, forming an
essential resource for compliance departments seeking to gauge the
efficacy of their anti-bribery and corruption framework. All of the
above point toward continued aggressive enforcement of the
FCPA.
Companies should not base their anti-corruption policies and
business decisions on the basis of what President Trump may or may
not have said about the FCPA, and must continue to take proactive
steps to ensure compliance with anti-corruption legislations across
the world, including the FCPA.
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