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Eric C. Chaffee

Publication Date

5-2014

Document Type

Article

Abstract

The Foreign Corrupt Practices Act of 1977 (FCPA) has never had a clearly defined place in American law. Part of the problem is the enigmatic nature of the FCPA itself. Codified in scattered provisions among the statutes of the Securities Exchange Act of 1934 (Exchange Act), the FCPA contains provisions requiring companies issuing securities registered with the Securities and Exchange Commission (SEC) to maintain both accurate books and records and adequate internal accounting controls.? In addition, the FCPA also has provisions rendering unlawful transnational bribery, in other words, bribes paid directly and indirectly by individuals and entities residing or operating in the United States to foreign public officials, foreign candidates for office, and foreign political parties.' Although the purposes of all of the provisions of the FCPA coalesce around the prevention, detection, and punishment of transnational bribery, the divergent nature of these provisions is apparent. ...

The remainder of this Article is structured as follows: Part II provides a discussion of transnational anti-bribery regulation as a component of international trade law and explains the shift in the justification for the FCPA and other transnational anti-corruption laws from the legalization of business ethics to the promotion of economic efficiency and the rule of law by way of international trade regulation. Part III discusses the consequences of the FCPA and other transnational anti-corruption law being a source of international trade regulation, including the need for the World Trade Organization (WTO) to increase its role in fighting corruption, the need for the enforcement of the anti-bribery provisions of the FCPA to be consolidated in the DOJ, and the need for the creation of an international body to address corruption-related issues. Finally, Part IV contains brief concluding remarks, which focus on the need for the legal academy to place more focus on transnational corruption law as a component of international trade law.

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