We Must Defend The FCPA
June 21st, 2011
Steve Rhodes/Flickr*
Global Financial Integrity’s Legal Counsel and Director of Government Affairs Heather Lowe has written a guest blog on FCPA Professor in response to criticisms of GFI’s press release about the Chamber of Commerce’s proposed changes to the FCPA. Ms. Lowe examined the FCPA in relation to the new UK Bribery Act, noting that unlike the FCPA, “The UK Bribery Act criminalizes ALL forms of commercial bribery”. As a result, a compliance defense under the UK Bribery Act has different ramifications than under the less encompassing FCPA.
She further notes that “Compliance in the UK is not an absolute defense” and that “The burden on a UK company is, in practical terms, the same as that of a company defending an FCPA violation under the current form of the statute.”
Examining the rationale for bribery, Lowe writes:
For the reasons set forth in GFI’s submission, I don’t think that most companies set out to engage in bribery, unless they do not have the attributes to be truly competitive in the market they are entering in the first place (which should not be overlooked as a possible motivating factor). When faced with a bribe, however, the choice on the spot may be perceived to be one of paying a bribe or losing business worth many times the value of the bribe. A strongly enforced FCPA makes that bribe much more expensive in any cost/benefit analysis.
The FCPA remains the cornerstone of international anti-bribery legislation, and needs to be protected from efforts to weaken it. Fighting bribery of all kinds, not just bribery of foreign officials, is necessary to create a more transparent, more competitive, and less corrupt international business environment.
* Image License: Some rights reserved by Steve Rhodes