WHEN IS A BRIBE NOT A BRIBE? A RE-EXAMINATION OF THE FCPA IN LIGHT OF BUSINESS REALITY Beverley Earle* & Anita Cava** ABSTRACT The Foreign Corrupt Practices Act (FCPA) ushered in an era where the mantra was zero tolerance for illegal behavior. Yet the enforcement climate did not match the rhetoric and many in business did not take this legal obligation seriously.In 1988, Congress amended the FCPA to permit so-called 'facilitation payments, " thereby reflecting the reality of business. The amendment made explicit that some technical bribes might actually be paid not to obtain or retain business, but instead merely to move goods offa dock or to get them through customs. Ultimately the OECD nations joined the United States in the 1990s by passing the Anti-Bribery Convention and moving the community of nations towards a common understanding of the necessity of taking a legal stand against bribery. The United Kingdom and other countries have also passed new legislation to curtail the practice of bribery. Enforcement actions increased dramatically in the United States after President Bush and the new UK law reinforced this new enforcement environment. Yet questions persist: Has the zealousness to eradicate bribery, fueled by the great harm it does to a country's development, overshadowed common sense and business reality in a narrowset of cases? * 02012 Earle & Cava. B.A., University of Pennsylvania, J.D., Boston University School of Law; Gregory H. Adamian Professor of Law and Chair, Department of Law, Taxation and Financial Planning, Bentley University, Waltham, MA. ** B.A. with Distinction, Swarthmore College, J.D. New York University School of Law, Hays Fellow; Professor of Business Law, University of Miami School of Business Administration; Director of Business Ethics Program and Co-Director of University of Miami Ethics Programs. The authors were invited to a symposium at the Wharton School of the University of Pennsylvania, Public Sector Corruption and Private Business Firms, June 28-29, 2012, http://lgstdept.wharton.upenn.edu/corruption/, organized by Associate Professor Philip M. Nichols, The Wharton School of University of Pennsylvania and attended by Liz David- Barrett (Said School of Business, University of Oxford), Norman Bishara (Ross School of Business, University of Michigan), David Hess (Ross School of Business, University of Michigan), Kevin Davis (New York University School of Law), Anita Ramasastry (University of Washington Law School), George Serafeim (Harvard Business School), Lucien Dhooge (Georgia Institute of Technology), Paul Carrington (Duke Law School), Richard Kauzlarich (Deputy Director, Terrorism, Transnational Crime and Corruption Center, George Mason University) and John de Figueiredo (The School of Law and the Fuqua School of Business, Duke University). Many thanks to all for their comments and suggestions. Special thanks also to Jonathan Darrow (Senior Research Consultant, Bentley University) for his research assistance.
WHEN IS A BRIBE NOT A BRIBE? A RE-EXAMINATION OF THE FCPA IN LIGHT OF BUSINESS REALITY
Jul 06, 2023
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