The Rise of Global FCPA Settlements

Introduction

On December 2, 2022, the United States Department of Justice (DOJ) announced it had entered into a deferred prosecution agreement (DPA) with ABB Ltd., a Swiss global technology company, for violations of the Foreign Corrupt Practices Act (FCPA).^[1] ABB, through third‑party intermediaries, allegedly paid more than $37 million in bribes to high-ranking officials within South Africa’s state‑owned electricity company, Eskom, to win a $160 million contract related to Eskom’s Kusile Power Station.^[2] The next day, the Securities and Exchange Commission (SEC) announced that ABB had additionally consented to a cease‑and‑desist order regarding violations of anti‑bribery, books and records, and internal accounting controls provisions of the FCPA.^[3] Although ABB is a Swiss company, it is under the ambit of the FCPA due to its public listing on an American exchange.^[4] The dual resolutions involved ABB agreeing to pay a $315 million fine to the DOJ and over $147 million to the SEC in criminal penalties, disgorged profits, and interest.^[5]

Eskom is well‑known for its corruption issues, including accepting bribes like those offered by ABB.^[6] These illicit deals are one of the reasons that Eskom continually fails to provide stable electricity service to South Africa, causing rolling blackouts throughout the country that hamper economic development. The South African Reserve Bank estimates that these blackouts cost the country $50 million daily in lost economic activity and cites Eskom’s performance as one of the reasons the country’s GDP growth was only 0.3% in 2022.^[7] Andre de Ruyter, the Eskom CEO the government hired to clean up corruption, was poisoned in December 2022 when he drank a cappuccino laced with cyanide.^[8] De Ruyter recovered but resigned, citing a lack of support from South African President Cyril Ramaphosa.^[9]

A decade ago, ABB Ltd. would most likely have entered into an FCPA resolution with American authorities, which would have ended the matter. However, the ABB Ltd. case represents a new form of multilateral cooperation that American officials are undertaking regarding FCPA resolutions. American enforcement agencies are actively working with their foreign counterparts to share information, jointly negotiate the terms of resolutions, coordinate the timing of settlements, and divide financial penalties between governments. In the ABB Ltd. case, American authorities worked with enforcement officials in Switzerland, Germany, and South Africa to establish a global settlement. The set of parallel settlements divided the financial penalties and provided South Africa with the largest share. Specifically, the DOJ credited ABB for its payments to foreign enforcers ($157.5 million to South Africa, $11 million to Switzerland, and another $11 million to Germany) and $63 million of the civil penalties ABB Ltd. paid to the SEC.^[10] Similarly, the SEC deemed its disgorgement of profits and interests award of $72.5 million satisfied by the $104 million settlement ABB Ltd. reached with South Africa in 2020.^[11] Ultimately, American authorities collected $147.5 million in criminal penalties from ABB ($72.5 million to the DOJ and $75 million to the SEC) of the $315 million in penalties assessed by the DOJ and SEC. American and South African authorities have subsequently cooperated on two other bribery cases involving SAP, a German software company, and McKinsey & Company Africa, the African subsidiary of the American consulting firm.^[12]

These global settlements—agreements between the United States and one or more other states to simultaneously or sequentially resolve bribery-related claims through parallel legal actions—have become the dominant form of resolution for the most important FCPA enforcement actions. The DOJ and SEC have engaged in multilateral coordination of FCPA resolutions in all their blockbuster cases, including resolutions with Goldman Sachs (2020 resolution involving $3.9 billion in penalties and other payments), Airbus (2020 resolution involving $2.1 billion in penalties), and Odebrecht (2016 resolution involving $2.6 billion in criminal penalties).

What is leading to the rise in global settlements? This Article explores the factors pushing the U.S. and foreign governments to conclude more global FCPA settlements. The rise of global settlements can largely be explained by foreign governments’ interests in having a more prominent voice in FCPA resolutions and American authorities’ willingness to engage counterparts that provide meaningful investigative and prosecutorial resources. Foreign governments have defensive motives as they see their multinational firms increasingly falling under Washington’s FCPA jurisdiction. American prosecutors possess significant discretion in pursuing corporate criminal cases, and foreign governments are concerned that they are ceding their authority over their national champions to Washington. These concerns have led several countries to change their domestic criminal law and procedures to engage more actively with American FCPA investigations.

American authorities are also growing more receptive to foreign assistance, particularly if it comes with greater information sharing and evidence collection. However, there are limits to this cooperation. American authorities are generally unwilling to defer to foreign resolutions, fearing that firms will lead a global race to the most lenient national enforcer, which would undermine the effectiveness of the global anti-bribery regime. As a result, U.S. officials (who can threaten higher statutory penalties than their foreign counterparts) retain significant control of the terms of corporate resolutions. Global settlements also support the American strategy of relying on firms to self-report FCPA violations. The extraterritorial nature of foreign anti-bribery laws can result in multiple states having jurisdiction over the same bribery scheme. As there is no legal principle of double jeopardy across sovereigns, firms can face charges in multiple jurisdictions for the same bribery scheme. Consequently, firms may be reluctant to self-report bribery or agree to a settlement in one jurisdiction if it can create liability in other jurisdictions.^[13] Coordination between the primary prosecuting governments can thus reduce corporate concerns regarding duplicative punishment and promote more self-reporting.

This Article examines the rise of global settlements and analyzes how this impacts the evolving American strategy for tackling transnational bribery. Over the past twenty-five years, the United States has been the leading enforcer of anti-bribery norms globally. Equipped with the broad extraterritorial jurisdiction of the FCPA, the DOJ and SEC have vigorously prosecuted both domestic and foreign corporations for bribing foreign government officials.^[14] This enforcement regime is one of negative comity, meaning that foreign governments have deferred to and cooperated with American prosecutors but have generally not become strong enforcers of foreign bribery themselves.^[15] However, American prosecutors acting independently have created a near-global enforcement regime. This system of unilateral American enforcement overcomes international collective action problems, where individual governments fail to enforce foreign anti‑bribery rules against their own corporations, quietly allowing these corporations to engage in foreign bribery and potentially gain commercial advantages. Although scholars have critiqued multiple aspects of the FCPA regime, it has significantly influenced how multinational corporations operate around the world.^[16] This is a noteworthy development given corruption’s considerable negative economic, social, and political consequences.^[17]

The rise in global settlements marks a significant shift in the transnational anti-bribery regime. The global settlement, where multiple governments establish parallel and linked settlements with the relevant corporation, marks a move towards coordinated comity—an enforcement model in which governments cooperate on investigations, negotiate settlement terms, and share the proceeds of financial penalties and other remedies. Global settlements can potentially address some of the concerns regarding American dominance with the negative comity model by permitting greater multilateral negotiations—often including the state where the foreign bribery occurred. States that are home to the target foreign corporation and (often) the state injured by corruption have a voice in setting the terms of the settlement and can bring their own national legal perspectives and interests to bear.

In addition, global settlements can increase the effectiveness of the enforcement regime. The inclusion of more governments can increase prosecutors’ access to evidence, produce higher-quality evidence, expand the bases of jurisdiction, and provide a greater array of remedies. However, global settlements could lead to lower levels of enforcement if the target corporation’s home government argues for a more lenient resolution or other interested governments push lower penalties.

The Article proceeds in six parts. Part I discusses the transnational nature of anti-bribery law and the evolution of the FCPA enforcement. Part II explores the rise of global FCPA settlements and examines the frequency and size of global settlements. Part III turns to the political motives behind the creation of global settlements. It analyzes why foreign governments are increasingly seeking to engage American authorities and how they are altering their substantive and procedural law to do so. This Part also analyzes why and when American prosecutors are interested in partnering with foreign regulators. Part III then argues that the rise of global settlements results from (1) a greater demand by foreign governments to be part of FCPA resolutions when their national firms are in the dock and (2) American prosecutors’ willingness to accommodate this demand when it results in more effective prosecutions. Part IV maps how global settlements have changed the politics of international legal exchange in the anti-bribery field. It argues that a new form of cooperation—coordinated comity—is emerging and compares it with other forms of cooperation in international economic law. Part V examines whether the increased use of global settlements increases the effectiveness of the transnational anti-bribery regime.

Part VI concludes by examining the significance of this work to the Trump Administration’s February 2025 executive order, which suspended FCPA enforcement, and the June 2025 memorandum outlining the DOJ’s new enforcement strategy. This Article underscores how the FCPA establishes a nearly global enforcement baseline that applies to both American and foreign firms. In doing so, the Article highlights how robust FCPA enforcement enhances the competitiveness of American firms and promotes the national interests of the United States. It further discusses the “America first” elements of the new enforcement strategy.

I. The FCPA, Global Settlements, and the Transnational Anti-Bribery Regime

The Foreign Corrupt Practices Act (FCPA) was passed in 1977 in the wake of the Watergate scandal and the subsequent SEC investigation that found over 400 American companies had spent hundreds of millions of dollars bribing foreign officials.^[18] The statute was designed to curb bribery of foreign officials by multinational corporations, require transparent corporate record-keeping, and restore public trust in the integrity of American businesses. As its enforcement increased in the early 2000s, it became a critical tool to ensure fair competition in international commerce by criminalizing corrupt payments abroad.^[19] It has become a cornerstone of global anti-corruption efforts.^[20]

The DOJ and SEC jointly enforce the FCPA. The DOJ’s Fraud Section is responsible for criminal prosecutions of the FCPA’s anti-bribery and corporate accounting provisions.^[21] The DOJ has jurisdiction over all American firms (including their officers, directors, employees, and agents), American nationals and residents, and foreign firms that list on an American exchange.^[22] The SEC’s Enforcement Division is responsible for civil enforcement and has jurisdiction over firms that list on an American exchange.^[23]

This Part delves into the development of global FCPA settlements and how they have become the dominant form of resolution for blockbuster FCPA cases. Subpart I(A) discusses how FCPA cases always have the possibility of concurrent jurisdiction by another (and often several) states. Subpart I(B) discusses the FCPA’s extensive extraterritorial jurisdiction and how American regulators have used it to enforce anti-bribery rules against American and foreign firms.

A. The Transnational Nature of the FCPA

The possibility of coordinated prosecutions and settlements arises from two sources: (1) the transnational nature of foreign bribery allegations and (2) the broad extraterritorial jurisdictional scope of many countries’ foreign bribery laws.^[24]

Foreign bribery invokes the jurisdictional coverage of at least two, and often more, states.^[25] The state where the offer or payment of a bribe takes place has jurisdiction under the territoriality principle.^[26] The state where the firm is a national also has jurisdiction under the nationality principle.^[27] The result is that overlapping jurisdiction is common in foreign bribery cases. For instance, an American firm might offer a bribe in Brazil to a government official to influence an official’s decision to award a contract. Here, Brazil would have jurisdiction under the territoriality principle, and the United States would have jurisdiction under the nationality principle. Many, but not all, states make use of the nationality principle to assert jurisdiction in foreign bribery cases.^[28] Indeed, until the early 1990s, many states offered tax deductions for foreign bribes, effectively subsidizing rather than prosecuting these actions.^[29]

The broad extraterritorial scope of prominent anti-bribery legislation, notably the FCPA’s jurisdiction over foreign firms listed on national stock exchanges, additionally expands the range of states that have jurisdiction to prosecute foreign bribery. The FCPA’s anti-bribery provision prohibits individuals and firms from offering anything of value to foreign government officials or employees of government instrumentalities to obtain or retain business.^[30] This prohibition on foreign bribery applies to three classes of individuals and firms. First, it applies to all domestic concerns, which include American nationals and any firm that has its place of incorporation or principal place of business in the United States (as well as the firm’s officers, directors, employees, and agents—even if non-nationals).^[31] Second, it applies to all issuers: firms (foreign or domestic) that list on an American securities exchange as their primary or secondary listing.^[32] Third, the FCPA applies to any individual who engages in foreign bribery or an act in furtherance of a foreign bribe while in the territory of the United States.^[33]

The FCPA grants American prosecutors jurisdiction over an extensive set of foreign actors and overseas activity. The FCPA’s broad extraterritorial scope reaches foreign firms that choose to list on American exchanges, often as a secondary listing in addition to their national exchanges. The number of foreign firms listed in the United States has dramatically increased in the last two decades due to the depth of the American capital markets.^[34] These firms include many of the largest and most prominent foreign multinational corporations in a range of industries, including major foreign oil companies (e.g., BP, Shell, Petrobras), semiconductor design and manufacturing companies (e.g., TSMC, ASML, Samsung, ARM), pharmaceutical and healthcare companies (e.g., Siemens, Novo Nordisk, GlaxoSmithKlein, AstraZeneca, Roche), mining firms (e.g., Rio Tinto, Anglo-American), telecommunications companies (e.g., Ericsson, Vodafone), media platforms (e.g., Tencent, Alibaba, Baidu), and military equipment manufacturers (e.g., BAE, Rolls Royce, Embraer). In addition, over 280 Chinese firms are listed on American exchanges.^[35] All these corporations are thus subject to the FCPA in addition to any anti-bribery legislation of their national government.^[36]

The United States is not the only country with broad extraterritorial reach. The U.K. Bribery Act gives British enforcement officials jurisdiction over nationals as well as any foreign firm that “carries on a business or part of a business in the UK.”^[37] Accordingly, there is the potential for overlapping anti-bribery coverage by American and British laws over third-country firms.^[38] For instance, a French firm may be subject to the FCPA (if it accesses American capital markets), the U.K. Bribery Act (if it accesses the British goods or services market), French regulators, and any additional countries where it engages in bribery.

The most relevant international agreement covering the application of foreign anti-bribery law is the OECD’s Anti-Bribery Convention, which requires all members to prohibit foreign bribery and to adopt accounting provisions in a manner similar to the FCPA.^[39] At the time of the convention’s negotiation in the late 1990s, the United States was far more concerned that other members might fail to enforce the convention than with the possibility of overlapping prosecutions.^[40] Consequently, the United States argued for language authorizing multiple states (including itself) to bring enforcement actions against firms even when they have minimal connections to the prosecuting state.^[41] The American position prevailed, and the convention endorses broad extraterritorial principles^[42] and does not provide any state with priority in enforcement.^[43]

As a result, there are few mechanisms that prevent the concurrent or sequential prosecution of the same bribery conduct by multiple governments. The OECD Convention established a common baseline for the substance of foreign anti-bribery law but did not establish a supranational enforcement system.^[44] Rather, the convention endorsed a decentralized, nation-based enforcement system with high potential for jurisdictional overlap.^[45] The convention only provides a loose consultation obligation to address possible jurisdictional conflicts and does not require deference to a single enforcer.^[46] Similarly, international law does not have a double jeopardy rule (or ne bis in idem principle) preventing states from prosecuting the same conduct by different sovereigns.^[47]

Some multinational firms have been subject to uncoordinated prosecutions by multiple sovereigns. These “carbon copy” or “piling on” cases are well-documented.^[48] The most famous is the TSKJ Consortium and their bribery related to the group’s $6 billion liquefied natural gas facilities on Bonny Island, Nigeria.^[49] After reaching a deferred prosecution agreement with the DOJ and SEC, many firms in the consortium (including Kellogg Brown and Root (KBR) and its parent, Halliburton) were prosecuted by Nigerian authorities.^[50] KBR ultimately paid the Nigerian authorities $35 million, in addition to the $579 million that KBR and Halliburton paid to the DOJ and SEC.^[51] KBR’s President, Jack Stanley, pled guilty to FCPA violations and was sentenced to 30 months in prison.^[52]

Although carbon copy cases occurred, coordinated government prosecutions were rare until the mid-2010s. The next two parts discuss how the United States largely enforced the global anti-bribery regime on its own for the first decade and a half, and how this has shifted in the last decade to greater coordination with other governments’ prosecutions.

B. American Unilateralism—The Early Enforcement Paradigm

Before the OECD Convention was signed in 1997, there were few prosecutions of any firms for foreign bribery.^[53] The United States had passed the FCPA in 1977, but American regulators were concerned that strong enforcement could harm American corporations’ global competitiveness if similar laws did not apply to foreign multinational firms.^[54] The adoption of the OECD Convention addressed this concern by establishing a common position prohibiting foreign bribery among states where major multinationals were headquartered.^[55] Since that time, American prosecutors have built a robust enforcement system, prosecuting American and non-American firms alike.^[56]

However, for roughly the first decade and a half of the OECD Convention^[57] (1999–2015), the treaty was not robustly enforced by most members.^[58] Most foreign anti-bribery laws are not as broad as the FCPA or as robustly enforced. All foreign bribery laws are extraterritorial because they criminalize bribes made outside the enforcing state’s territory. However, most states only apply these laws to their nationals—firms and citizens—not all commercial entities that engage the state’s capital markets.^[59] The United States effectively acted as a global regulator of anti-bribery activity. The FCPA’s uniquely broad scope, covering all American firms and issuers, provided enforcement officials with the jurisdictional hook to enforce the law against the most significant multinational firms at the time. The FCPA’s inclusion of issuers is critical as it provides the United States with jurisdiction over most major multinational enterprises worldwide.^[60]

Other states essentially acquiesced to the American unilateral model even though they had the authority to bring their own prosecutions. At times, it even appears to be an active delegation model, with foreign governments referring evidence of bribery to American authorities for prosecution.^[61] The OECD Convention formally requires all members to enforce anti-bribery law within their jurisdiction, including over their nationals acting abroad.^[62] Yet most states have not heavily invested in investigating and prosecuting foreign bribery cases.^[63] This may be due to several reasons, including the difficulty of investigating foreign activity or collecting evidence abroad, high domestic bars to proving foreign bribery at trial, a lack of genuine interest in prosecuting foreign crimes, or an improper political influence on enforcement authorities to avoid taking action that would hurt national firms.^[64] Elizabeth Acorn and Michael Allen found that in the first decade of the OECD’s entry into force, enforcement actions by OECD members (other than the United States) were infrequent, with only ten of the thirty-four members completing even a single enforcement action.^[65]

Instead of a regime where multiple states enforce their own laws against their national firms, this early period is best characterized by “negative comity,” where states accede to foreign prosecutions of their national firms.^[66] States faced a collective action problem, where governments preferred to prohibit foreign bribery but were concerned that other states would not prosecute their own nationals.^[67] The OECD Convention provides a solution to the collective action problem by allowing the United States to build a nearly global enforcement regime based on access to its capital market.^[68]

This is not to say that there were no examples of coordinated cases during this period. American officials jointly brought a few prosecutions with foreign governments during this time—the Siemens and BAE cases being the most significant actions. However, some actions, such as the U.S. prosecution of Siemens, were viewed as cooperative, while others, like the U.S. prosecution of BAE, were viewed as a response to obstruction. These cases are discussed below.

1. Siemens.—German and American authorities coordinated their enforcement in the prosecution of Siemens AG, a German parent corporation with over 1800 subsidiaries, for overseas bribery.^[69] Siemens, a large German conglomerate that focuses on healthcare, infrastructure, technology, and communications, had long engaged in extensive foreign bribery, giving executives bribery budgets in the tens of millions to secure contracts with government officials in Israel, China, Venezuela, Argentina, and Iraq.^[70] The company made more than $805 million in corrupt payments between the mid-1990s and the mid-2000s.^[71] German police were the first to act, raiding Siemens’ headquarters in Munich and several executives’ homes in 2006.^[72] Siemens subsequently disclosed possible FCPA violations by its parent and subsidiaries to the DOJ and SEC. The U.S. government then also investigated, and the countries shared their findings.^[73] After the firm and government officials concluded their investigations,^[74] Siemens and three of its subsidiaries in Argentina, Bangladesh, and Venezuela pleaded guilty to FCPA charges: Siemens and the Argentinian subsidiary to books and records violations, and the other two subsidiaries to conspiracy to bribery (as well as books and records) violations.^[75] Siemens ultimately paid $800 million to American authorities and $800 million to German authorities in criminal fines, penalties, and disgorgement of profits.^[76] The settlement agreement with American and German authorities required that Siemens hire an independent compliance monitor,^[77] and American authorities consent to the first-ever non-American monitor—former German Finance Minister, Theo Waigel.^[78] The DOJ described its work with the Munich Public Prosecutor’s Office as a “close, coordinated working relationship.”^[79]

2. BAE.—By contrast, the joint prosecution of BAE with British prosecutors had a different tenor. BAE, the British aerospace and defense contractor, was initially investigated by the British Serious Fraud Office (SFO) for making $2 billion in corrupt payments to Saudi officials.^[80] The payments were related to the Al-Yamamah contract, negotiated by the Thatcher government, for the Saudi purchase of BAE’s Tornado aircraft and other arms.^[81] However, the Blair government quashed the SFO’s investigation in 2006, citing security concerns (specifically, maintaining good relations and information-sharing with the Saudis).^[82] This rationale was viewed with skepticism in both London and foreign capitals, given the economic importance of the BAE’s sales to the British economy and the level of local employment involved.^[83]

The United States took particular exception to Britain’s failure to police its own firm and opened an investigation.^[84] Faced with the American prosecution, the SFO decided to open a new investigation into BAE—now based on bribery allegations in Tanzania.^[85] BAE ultimately pleaded guilty to making false statements about its FCPA compliance program, conspiring to defraud the United States, and violating the Arms Export Control Act.^[86] It paid $400 million in criminal fines.^[87] It also pled guilty in London to accounting violations and paid $50 million in fines.^[88]

Although this prosecution represents some coordination by the U.S. and U.K. governments, it more closely represents a global enforcer model.^[89] The United States’ unwillingness to defer to Britain’s decision to quash the investigation into a national champion’s alleged corruption provided a backstop to the transnational anti-bribery regime.^[90] Contemporary statements by the DOJ officials highlighted how they viewed their role as providing a level playing field for global commercial competition even if other governments did not follow suit. Alice Fisher, then-Assistant Attorney General for the DOJ’s Criminal Division, stated:

By enforcing the FCPA, we are demonstrating our commitment to combating global corruption, maintaining the integrity of U.S. markets, and setting an example for other countries around the world . . . . By enforcing the FCPA, and by encouraging our counterparts around the world to enforce their own anti-corruption laws, we are making sure that your competitors do not gain an unfair advantage when competing for business overseas.^[91]

The BAE case demonstrated America’s willingness to act as an alternative enforcer, prosecuting cases against foreign corporations even if their own governments were reluctant.^[92] This approach has been described as “imperialistic,” overriding the governance choices of other sovereigns.^[93] There is certainly truth to this critique. Yet this broad extraterritorial model is endorsed by the OECD Convention, which focuses on improving the deterrence of anti-bribery law.^[94]

II. The Introduction of Global FCPA Settlements

A global FCPA settlement is an agreement between the United States and one or more foreign governments to simultaneously or sequentially settle bribery-related claims through parallel legal resolutions.^[95] Five elements characterize most global settlements. First, they are concluded with firms (often involving parent companies and foreign subsidiaries), not individuals. Second, global settlements are generally reached through non-trial resolutions. In the United States, non-trial resolutions are reached through deferred prosecution agreements (DPA), non-prosecution agreements (NPA), or guilty pleas, but other nations have their own procedures for reaching quick settlements. Third, global settlements involve governments cooperating in case-related investigations and evidence collection. Fourth, they include interstate negotiations over the form and the extent of the corporate remedy, including disgorgement, criminal fines, changes to the firm’s compliance system, and the possible imposition of a monitor. Fifth, global settlements involve the interstate division of all financial penalties (e.g., disgorgement, fines, interest, restitution) between the state parties. American prosecutors implement this distribution of penalties by crediting the firm’s payments to other governments toward the American penalty.

This Part examines how global settlements have emerged as a method for resolving major FCPA cases. Until the last decade, the United States was typically the primary enforcer of anti-bribery laws. It leveraged its extensive jurisdiction, stemming from foreign companies’ desire to access American capital markets, to enforce its laws unilaterally. Other countries generally accepted this enforcement paradigm, showing little interest in foreign anti-bribery enforcement and lacking the mechanisms to act as swiftly as American prosecutors. Consequently, the most significant FCPA cases are now overwhelmingly resolved through global settlements, with enforcement officials from multiple nations coordinating their investigations and pursuing parallel resolutions.

This Part first describes the growing importance of global settlements in current FCPA practice. Almost all of the largest FCPA cases have involved global settlements, and the criminal fines for global settlements are notably higher than those for the average case. Next, this Part examines how the DOJ’s policy change encouraged the move towards concluding these transnational parallel actions. Then, this Part concludes by discussing the implications of the Trump Administration’s executive order on FCPA enforcement. Part III analyzes the motivations of foreign governments and the United States to adopt the global settlement model.

A. The Importance of Global Settlements to FCPA Practice

Nearly all the most important FCPA cases based on financial penalty size are global settlements.^[96] Figure 1 shows the top ten FCPA settlements by financial penalty size.^[97] The U.S. Enforcement Penalty column provides

the total U.S. government penalty before crediting. The Global Distribution of Penalty column shows the amounts collected by each government after crediting. The cases with more than one state in the “global distributions column” are coordinated settlements after 2016 where the United States has acknowledged cooperating with other governments and credited parts of the criminal penalties owed to other governments to the firm’s final penalty owed to the United States. For instance, the Goldman Sachs case involved a global settlement with the United States, Malaysia, the United Kingdom, Singapore, and Hong Kong. The Siemens case is a prototype global settlement, as the United States and Germany entered a parallel resolution, but the United States did not officially credit the German penalty. Rather, the United States limited the FCPA penalty to $800 million, and Germany assessed the same criminal penalty.

As Figure 1 highlights, eight of the top ten FCPA resolutions and all of the top five penalties are global settlements. The level of U.S. crediting to foreign governments is significant in multiple cases. The United States shared well over half of the total FCPA criminal penalties in three of the top five cases. Among the top ten cases, the United States ultimately collected roughly 50% or more of the total FCPA criminal penalties in six cases, two of which were not global settlements.

It is also important to observe the nationality of the firms in the FCPA’s Top Ten Settlements. Nine out of the top ten are foreign firms, including three from Brazil and five from the European Union. While the top ten list does not provide a comprehensive view of all FCPA cases, it highlights that the FCPA is not a constraint applicable only to American firms, nor do the highest penalties disproportionately fall on American firms. Instead, U.S. officials use their extraterritorial jurisdiction to address domestic and foreign firms’ corrupt practices worldwide.

Figure 1: Top 10 FCPA Cases

Figure 2 presents the top ten FCPA Global Settlements concluded by the United States since 2016 (which excludes Siemens).^[113] In six out of ten of these cases, the United States collected roughly half of the total criminal penalties and split the penalty evenly in two of the cases—VimpelCom and Société Générale SA—with the Dutch and French governments, respectively. Figure 2 illustrates the wide range for dividing penalties in global settlement cases, from sharing over 90% of the total penalty in the Odebrecht settlement to only 25% in the Glencore settlement. It also illustrates how multiple governments are often involved (six cases included three or more governments) and the United States’ repeated coordination with certain countries: Brazil, the United Kingdom, Switzerland, France, and the Netherlands. In four cases, the state where the corruption occurred was involved in the resolution (Petrobras, Odebrecht, Braskem, and Gunvor), but in only one case, Gunvor, was the state where corruption took place not also the home state of the firm.

Figure 2: Top Ten FCPA Global Settlements Since 2016

(cont.)

There are multiple reasons why global settlements result in the largest FCPA fines. Global settlements may lead to higher fines because more resources are dedicated to investigating and prosecuting corruption due to enhanced international cooperation. When multiple states cooperate, they uncover more information regarding the extent of the bribery scheme, gather better evidence, and can devote more prosecutorial effort to a case. Cases involving large multinational companies, particularly national champions, can additionally attract the most public attention and concern, prompting more governments to pursue parallel settlements alongside the FCPA resolution. Finally, the most extensive bribery schemes are more likely to be detected by multiple nations and prosecuted by several countries. Regardless of the reason, global settlements are now an established and vital form of international legal cooperation.

Figure 3 provides data on the distribution of criminal penalties between the United States and foreign governments for each year from 2016 to 2024. For the global settlements concluded each year, the graph highlights how much was credited to foreign governments and how much the United States collected. Given the relatively small number of cases, the high levels of sharing in 2016, 2018, and 2020 are most likely driven by the blockbuster cases in those years where the United States shared penalties with the Brazilian and French governments. There were fewer blockbuster cases from 2021 to 2024, and thus, levels of sharing were moderate. During those years, the United States collected most of the FCPA penalties in global settlement resolutions. However, it is noteworthy that the United States engaged in the greatest sharing of FCPA penalties during the Obama and first Trump administrations, even though those presidents had different approaches to international cooperation.

The significance of global settlements in FCPA cases has received minimal scholarly attention, yet these internationally coordinated resolutions are a crucial and consistent aspect of contemporary FCPA practice. As this subpart illustrates, nearly all the largest FCPA settlements have parallel actions involving other states and the sharing of FCPA criminal penalties through crediting.^[125] The practice is now well-established across politically diverse presidential administrations. However, the specifics of the policy remain quite flexible regarding which states to cooperate with and how to divide the total penalties.

The rise of global settlements is not only important to understanding the landscape of modern practice, but it also signals a paradigm shift in the global anti-bribery regime. The next subpart describes the changes in DOJ policy that allow this global distribution of FCPA penalties through crediting. Part III then analyzes the political shifts in Washington and foreign capitals that have created the demand for global settlements.

B. “Crediting” to Build Global FCPA Settlements

As a matter of DOJ procedure, the formal change in policy that explicitly permitted global coordination came in 2018 with then-Deputy Attorney General Rod Rosenstein’s “Anti-Piling On Policy” memo.^[126] The memo, issued during the first Trump Administration, directed DOJ attorneys to coordinate, where appropriate, with other federal, state, local, and foreign enforcement authorities resolving the same misconduct with the same firm.^[127] The new policy endorsed the idea of actively engaging foreign governments.^[128] The policy further emphasized that DOJ attorneys should not seek excessive or redundant penalties when other prosecutors (national or international) also imposed penalties.^[129]

While the memo did not provide a specific plan for implementing the Anti-Piling On Policy, it effectively formalized earlier experimentation by DOJ attorneys.^[130] In 2016, DOJ attorneys, coordinating with foreign governments (and often the SEC or other federal agencies), had started “crediting” the firm with penalties assessed by foreign or other domestic regulators. The DOJ attorneys would determine what the appropriate penalty for FCPA misconduct was under the sentencing guidelines and DOJ corporate resolution policy based on several factors, including the severity and extensiveness of the foreign bribery scheme, the knowledge of senior executives, the effectiveness of the firm’s compliance program, whether the firm self-reported fully, and the extent of the firm’s cooperation and remediation.^[131] The DOJ would then negotiate with foreign governments to divide penalties, determining how much the U.S. Treasury would keep and how much foreign authorities would claim. The DOJ would credit the firm with payments made to foreign authorities, either in their entirety or up to a set limit.

For instance, American authorities coordinated a settlement with Singapore and Brazil in 2017 before the issuance of the anti-piling on policy. In that case, Keppel Offshore & Marine Ltd. (KOM), a Singaporean company, had engaged in a decade-long scheme to bribe Petrobras, a Brazilian state-owned enterprise.^[132] The DOJ determined that the appropriate FCPA penalty was $422.2 million, weighing the extent of the bribery and KOM’s failure to self-report against the firm’s extensive cooperation during the investigation.^[133] Once the total figure of $422.2 million was set, the DOJ seems to have negotiated with Singapore and Brazil over the division of the penalties, as Singapore received 25% and Brazil received 50% of the total.^[134] Formally, the DOJ assessed KOM $422.2 million, but credited the firm $211.1 million for its payments to Brazilian authorities and $105.6 million to Singaporean authorities.^[135] The DOJ still trumpeted the $422.2 million figure in its press release (benefitting the department and potentially individual attorneys), but the U.S. Treasury only received the remaining $105.6 million.^[136] From 2016 to early 2018, the DOJ used similar crediting in the Société Générale, Odebrecht, Telia, and Rolls-Royce FCPA resolutions.^[137]

The DOJ embraced this experimentation and institutionalized it in the Anti-Piling On Policy.^[138] Since 2018, this crediting has been the primary mechanism by which the DOJ coordinates parallel settlements with foreign governments and other domestic agencies (most notably, the SEC). Occasionally, the DOJ will impose limits instead of crediting the full extent of penalties paid to foreign governments. For instance, in the Glencore FCPA resolution, the DOJ agreed to credit Glencore up to $136.2 million for criminal penalties paid to the United Kingdom.^[139] However, the United Kingdom’s Serious Fraud Office ultimately assessed Glencore penalties of over $400 million in November 2022.^[140]

The DOJ will not credit foreign government-assessed penalties if the DOJ has not been cooperating with the foreign agency. For instance, in the Odebrecht case, Odebrecht, a large Brazilian engineering and construction conglomerate, had bribed government officials in over thirteen countries. The firm entered a resolution with the United States, Switzerland, and Brazil (the United States and Switzerland each received 10% of the fine, while Brazil received 80%).^[141] Odebrecht was later pursued by other states in which it bribed, but those criminal penalties were not subject to credit by the DOJ.^[142]

While the Anti-Piling On Policy institutionalized the crediting practice established by the DOJ between 2016 and early 2018, it does not answer the question of why foreign governments wanted greater access to FCPA cases or why the United States was interested in collaborating with them. Part III addresses these motivations.

III. The Political Analysis Behind the Rise in Global Settlements

What is driving the rise in global settlements? Why is the United States more inclined to negotiate the outcomes of FCPA resolutions with foreign governments rather than unilaterally imposing its preferred terms? Why are foreign enforcers not demanding their own exclusive settlements? What are the limits of this form of cooperation? This Part explores the factors propelling the United States and foreign governments toward global FCPA settlements. The rise of global settlements stems from a demand by foreign governments for a greater role in FCPA resolutions, coupled with American interests in providing access when it leads to broader or stronger FCPA cases. This section analyzes the motivations of foreign governments and American incentives separately.

Foreign governments are increasingly interested in participating in FCPA resolutions primarily for defensive reasons.^[143] They watch their own multinational corporations falling under Washington’s corporate criminal jurisdiction. American prosecutors have greater statutory authority to pursue corporations criminally, and foreign governments are concerned they are surrendering their authority to control the fate of some of their largest employers and sources of export revenue to U.S. officials.^[144] These concerns have prompted some countries to adopt “non-trial resolution” or “corporate diversion” mechanisms, similar to American deferred prosecution agreements, enabling foreign prosecutors to act with the same speed as their American counterparts.^[145]

The United States has its own reasons for being receptive to foreign government engagement with FCPA settlements. At the most basic level, increased coordination with foreign law enforcement partners in anti-bribery investigations provides American enforcement authorities with greater access to information sharing, evidence collection, and aid in extradition.^[146] The United States’ penalties for corporate crime are so much higher than those of most foreign counterparts that it can cooperate with foreign enforcement officials and still retain significant control over many of the resolution’s terms.

International cooperation also enhances the effectiveness of the American strategy of relying on firms to self-report FCPA violations.^[147] Increased transnational coordination of investigations raises the probability of discovering and successfully prosecuting corrupt practices. This strengthens the FCPA’s deterrent effect and increases firms’ incentives to self-report to authorities. The trend toward global FCPA settlements further bolsters the corporate self-reporting strategy. It gives firms greater assurance that self-reporting will lead to a coordinated set of parallel national resolutions rather than multiple overlapping prosecutions.^[148]

Global settlements also enable the United States to engage more with countries where corrupt acts occur.^[149] The FCPA lacks a provision for sharing funds with the states where the corruption originated, and FCPA settlements predominantly go into the U.S. Treasury. This situation has drawn criticism from some civil society groups, who argue that American authorities neglect to aid the victims of corruption.^[150] Global settlements allow the United States to coordinate with more countries where corruption originates and to ensure that a significant portion of the funds collected returns to these states. In this context, global settlements offer a limited yet meaningful effort to share financial penalties with states affected by corrupt practices.

A. Foreign Governments’ Demand for Global Settlements

Most foreign governments seeking greater access to global FCPA settlements are the home jurisdictions of multinational firms, not the governments of the states where the corruption occurred (although the United States is making some efforts to bring these latter countries into the settlement process).^[151] Occasionally, the foreign government participating in a global FCPA settlement is both the home jurisdiction of the multinational firm and the territory where the crime occurred. For instance, in the Odebrecht and Petrobras cases, the firms were headquartered in Brazil (although both benefitted from listings on American exchanges), and Brazil was the site of some of the corruption activity.^[152] However, even here, the home of the multinational firm appears to be the more important factor. In the Odebrecht case, the parent company and its subsidiary, Braskem, bribed foreign officials in twelve countries, but none of these governments (besides Brazil) was part of the global settlement.^[153] As a result, this work primarily focuses on the motivations of nations to protect their multinational firms rather than seeking compensation for crimes committed in their territory.

1. The Threat of American Prosecutions to Foreign Firms.—Under the OECD Convention, member governments have an obligation to apply their foreign anti-bribery laws to their own national firms.^[154] However, governments (other than the United States, and to a lesser extent, Germany, Switzerland, and the United Kingdom) have traditionally not been robust enforcers.^[155] There are multiple possible reasons for this lack of enthusiasm.^[156] Governments may not view crimes occurring extraterritorially as a priority; these cases may be particularly difficult to prosecute given the difficulty of investigating foreign activity and collecting evidence, and some countries may perceive that their national firms may secure an economic advantage if their firms can bribe while others are constrained.

Early empirical literature on foreign anti-bribery law was optimistic that OECD governments would ramp up their own enforcement over time. Kaczmarek and Newman found evidence for a “spillover” theory of enforcement—states invest more in enforcement after engaging in joint enforcement with the United States.^[157] However, recent studies have not found empirical support for such optimism. Acorn and Allen, drawing on a larger data set, find that joint prosecutions do not lead to higher levels of enforcement.^[158] They highlight that OECD governments are not inspired by joint prosecutions to bring enforcement actions to the level that would be expected given their firms’ exposure to foreign corruption.^[159]

A government’s failure to prosecute its own firms for foreign bribery does not immunize these firms. The U.S. government has broad extraterritorial authority to pursue foreign firms, particularly those who access American capital markets, and has embraced the role of enforcing a level playing field for anti-bribery norms.^[160] As Brandon Garrett argues in his work on global corporate prosecutions, American legal exceptionalism provides prosecutors with significant leverage when dealing with foreign firms based on (1) broad corporate criminal penalties, (2) American theories of respondeat superior, and (3) wide-ranging prosecutor discretion to grant leniency but also demand structural reforms.^[161]

First, American law embraces corporate criminal liability in a manner that many European countries do not.^[162] These prosecutions come with substantial financial penalties that are orders of magnitude higher than foreign authorities generally have the power to assess.^[163] The range of activity for which corporations can be held accountable is also much higher given American conceptions of respondeat superior.^[164] As a result, corporations are responsible for actions for all employees and agents, not just high-level managers or board members.^[165] Although the FCPA makes firms directly responsible for monitoring the accounting systems of their subsidiaries and, thereby, can create direct liability based on a failure to monitor,^[166] the extensive American conception of respondeat superior can create vicarious liability for corporations for their employees’ corrupt practices that largely does not exist in foreign jurisdictions.^[167]

Some governments have adapted their rules on foreign bribery to adhere more closely to American respondeat superior principles, but those rules often come with broad exceptions.^[168] For instance, the U.K. Bribery Act makes it a crime for firms to “fail[] to prevent bribery,” thus establishing a responsibility on firm managers to control lower-level employees that mimics the American vicarious liability rule.^[169] However, British law provides a complete legal defense from liability for firms with “adequate procedures” to prevent bribery.^[170]

Second, American prosecutors have more wide-ranging discretionary power to negotiate leniency agreements than many foreign prosecutors.^[171] Violations of the FCPA come with very high financial penalties and the possibility of debarment from government contracting. Garrett highlights that these dual threats give prosecutors significant leverage to demand cooperation from firms, both in terms of cooperating with the government investigation on the front end as well as agreeing to settlement terms on the back end.^[172]

American prosecutors have used this leverage to channel most FCPA resolutions into deferred prosecution or non-prosecution agreements (DPAs/NPAs). These agreements allow firms to resolve their potential FCPA violations without entering a guilty plea or going to trial.^[173] In DPA/NPA resolutions, prosecutors essentially agree not to charge the firm with a crime (or to defer the prosecution pending another FPCA violation) if the firm resolves the case. Unlike agreements to plead guilty, judges cannot review a prosecutor’s decision to offer a DPA/NPA (nor the terms on which it is offered) as the decision to charge is an executive branch power, not a judicial one.^[174]

The offer of a DPA or NPA can encourage firms to self-report violations, thereby expediting enforcement proceedings and providing leniency to firms that fully cooperate.^[175] DPAs provide a way to mitigate the risk of the FCPA’s significant penalties and extensive respondeat superior principles. Self-reporting does not guarantee legal immunity, but it promises substantial leniency.^[176] DPAs can also allow firms to escape criminal liability, often only admitting to violations of the FCPA’s books and records provisions.^[177] DPAs are also beneficial to prosecutors. The agreements give enforcement agencies information on violations they might not have detected while reducing the prosecutorial resources required to resolve a case.^[178]

While these agreements allow firms to avoid guilty pleas, the form of the resolution also allows prosecutors to require that firms adopt changes to their internal business practices.^[179] DPA-required corporate mandates can include installing a monitor (overseeing the firm’s policies and practices), demanding changes to the firm’s compliance programs, changing the structure of the firm’s board, or other structural changes to their business practices.^[180] Such reforms are intrusive to business operations and can change corporate governance.^[181]

2. Foreign Reactions.—American FCPA prosecutions can lead to suspicion and resistance in foreign capitals and corporate offices.^[182] Foreign firms recognize that they could face unsympathetic enforcers who can demand fines in the hundreds of millions, if not billions, and impose onerous corporate reforms.^[183] Governments similarly do not always appreciate extraterritorial actions against their multinational firms that impose American policy priorities on them. Even where foreign governments agree with American aims and believe the United States is even-handed, governments and firms can chafe against America’s “exorbitant privilege of imposing its way in boardrooms across the world.”^[184]

At the extreme, foreign governments may be convinced that American authorities are engaging in a form of prosecutorial industrial policy: using extraterritorial laws to achieve American commercial goals.^[185] An example is the French government’s concerns with the U.S. prosecution of Alstom, a French power and transport company. American authorities began investigating Alstom in 2010 in relation to allegations that the firm paid over $75 million in bribes to government officials in Indonesia, Egypt, Saudi Arabia, the Bahamas, and Taiwan to win $4 billion in contracts.^[186] Even as American officials investigated and arrested Alstom executives, Alstom refused to cooperate.^[187] This deprived Alstom of any leniency, and Alstom investors anticipated that a final resolution of the case would entail a fine close to $1 billion.^[188] Alstom was not in a strong financial position, so it started to explore the sale of key business groups.^[189] Interested buyers included Siemens, Mitsubishi, and G.E.^[190] Alstom ultimately decided to sell to G.E., arguably because it could better understand the FCPA liability that came with the purchase and advise Alstom on how to work with American authorities to resolve the case.^[191] After the sale was announced—and on the same day that Alstom shareholders approved the sale—Alstom entered into an agreement with the DOJ to plead guilty to foreign bribery and pay a fine of $772 million.^[192]

The sale of Alstom’s key business groups to G.E., as the FCPA case concluded, caused a firestorm in Paris.^[193] Alstom was a French national champion, responsible for producing advanced power and infrastructure projects at home and abroad.^[194] Government officials and commentators in prominent news outlets accused the U.S. government of effectively forcing Alstom to sell its key business assets to an American rival, potentially at a below-market value price.^[195] They argued that U.S. legal strategies left French firms (and France) “helpless” to serious economic harm.^[196] Government officials further alleged that Alstom CEO Patrick Kron had decided to sell to G.E. to escape personal criminal liability.^[197] Then-Economy Minister Emmanuel Macron announced his “heartfelt belief” that Kron sold Alstom to GE to evade personal criminal liability under the FCPA.^[198] Another minister went further, declaring Kron to be a traitor.^[199] The French Parliament convened a parliamentary inquiry. Although the parliamentary report did not conclude that the FCPA resolution was carried out in bad faith,^[200] the inquiry highlighted how foreign prosecutions could weaken French firms.^[201]

Even in cases that lead to less public outrage than the Alstom case, the magnitude of the criminal fines and threat of corporate structural changes accompanying FCPA cases raise economic concerns for foreign governments. Government officials do not want to rely on the good graces of American authorities when the economic health of their largest multinationals is at risk. These firms are often viewed not only as major employers, taxpayers, and sources of foreign export revenue, but also as a means of projecting state power abroad. Consequently, governments can view threats to their large multinationals as a foreign policy concern in addition to a domestic economic concern.

Increasingly, some foreign governments see a greater value in being at the bargaining table with American authorities when FCPA resolutions are negotiated. While the American punitive capacity may still be greater, governments can have a voice in determining how the case is framed, whether the firm deserves leniency, and how prosecutors should use their discretion to remedy the violation. Including foreign governments in the bargaining process can shape the outcome in important ways for the firm and the government. While it is hard to verify that the positions of foreign governments sway American authorities, cooperation with foreign officials can lead to greater trust between agencies, which is reflected in global settlements.

Foreign governments’ cooperation with American authorities in anti-bribery actions may also lead to a greater sense of reciprocity and mutual respect, which would be borne out in the resolution phase. For instance, when German and American authorities collaborated on the Siemens investigation and prosecution, they evidently overcame early views of mutual distrust and collaborated closely. The result mirrored this joint endeavor. While the final penalty was the highest-ever FCPA fine of $1.6 billion, the fine was well below the $2.7 billion that the U.S. Sentencing Guidelines permitted, and the financial penalties were split evenly between the countries.^[202] American officials also appointed a German national—a former German Minister of Finance—as the independent monitor.^[203] For Siemens and the German government, this put Siemens’s internal restructuring and rehabilitation under the purview of an individual who understood German corporate culture more than an American would.^[204]

Governments must initiate anti-bribery prosecutions to have a seat at the bargaining table. Only by establishing their own legal actions can foreign governments engage American authorities on the terms of FCPA resolutions. As a result, several governments have embraced the idea of engaging in more anti-bribery enforcement, at least in part, for the possibility of engaging in global resolution negotiations.

To make global settlements possible, several nations have followed the American DPA/NPA model of adopting legislation that allows “corporate diversions” or “non-trial resolutions” of criminal activity involving corruption.^[205] The United Kingdom,^[206] Canada,^[207] Brazil, Singapore, and, most recently, France have all adopted mechanisms to allow prosecutors to resolve corruption issues quickly (usually targeting corruption specifically, not corporate crimes broadly).^[208]

The politics surrounding the passage of the French legislation allowing non-trial resolutions, Loi Sapin II, were particularly instructive to the country’s goals.^[209] Legal commentators have maintained that the legislation was, in part, a response to international criticism that France was lax in its enforcement of foreign corruption.^[210] However, commentators also argued that this legislation was a response to national firms, who demanded American-style methods for resolving these crimes, noting that “several companies had paid heavy fines in the United States for acts of corruption that the French judicial system was unable to punish.”^[211] Olivia Dufour highlights that French multinational firms supported the new law as a defensive measure:

Surprising as it may seem, this reform, whose stated aim is to strengthen the fight against corruption, has been praised by companies. And with good reason. They know from painful experience that, for some years now, they have found themselves in the clutches of American authorities who, in the absence of dedicated procedures in France, have chosen to impose their own sanctions. It is therefore to avoid the risk of proceedings in the United States that companies agree to tougher laws in France.^[212]

Not all countries that engage in global settlements have domestic legislation that explicitly provides for corporate diversions specific for corruption offenses. For instance, the Swiss government, a frequent partner for the United States in global FCPA settlements, uses a domestic mechanism called a summary penalty order to effectuate its settlements.^[213] The procedure allows prosecutors to conclude criminal cases against corporations on an expedited basis without court review.^[214] The cases are resolved through a criminal fine and the forfeiture of profits,^[215] and allow corporations greater predictability and confidentiality.^[216] Prosecutors in Switzerland nonetheless view themselves as being at a disadvantage in international negotiations due to the lack of a statutory corporate diversion mechanism, stating the lack of a clear non-trial resolution process creates hurdles to cooperation.^[217]

The last decade has seen foreign governments becoming increasingly interested in mediating between American authorities and their own multinational firms in FCPA resolutions. The expansive power of American prosecutors, particularly in the foreign corruption sphere, has led to record-breaking fines and mandates to change the operations of some large foreign multinationals. These actions put many foreign governments in a defensive position, seeking a means to have a greater voice in resolving FCPA claims. To do so, foreign governments have, perhaps counterintuitively, increased their enforcement of foreign anti-bribery laws and adopted more legal mechanisms to settle corruption cases collaboratively and quickly.

B. The U.S. Supply of Global FCPA Settlements

If foreign governments demand a louder voice in FCPA resolutions, why (and when) are American authorities interested in providing these governments greater access? U.S. officials are open to foreign collaborations when cooperation brings additional investigative resources, enhancing the FCPA’s deterrent effect. American enforcers also promote a strategy of encouraging companies to self-report violations, and global settlements can support this by reducing the risks firms face in doing so. Finally, U.S. officials seem to be making greater efforts to use global settlements, in specific instances, to compensate the countries where corruption took place. While this currently represents a minority of global settlement cases, American authorities are sharing some financial penalties with the states affected by corruption.

1. More Investigative Resources.—The clearest rationale for American authorities to collaborate with foreign governments on FCPA resolutions is to increase the available resources for transnational investigations and evidence collection.^[218] FCPA cases involve incredibly complex and sprawling investigations requiring extensive police and prosecutorial resources.^[219] Bribes are made quietly in foreign locations, often routed through middlemen and shell companies, hidden via misleading or vague financial records, and purposefully concealed by both the giver and the recipient. As a result, building FCPA cases often requires foreign cooperation. The United States has mutual legal assistance (MLA) treaties with many relevant states, but relying on these alone can be disappointing and ineffective.^[220] Less formalized cooperation, particularly on the bilateral level, can be more effective in promoting information sharing cross-nationally, particularly if there is some trust between the relevant actors.^[221]

The United States’ willingness to allow foreign enforcement officials a seat at the bargaining table can motivate increased cooperation and serve as the basis for more mutual trust. Although the DOJ does not explicitly link global FCPA settlements to evidence collection and information sharing, key policy officials repeatedly highlight how important foreign partners are to the FCPA regime.^[222] Then-Assistant Attorney General of the DOJ Criminal Division Nicole Argentieri emphasized foreign relationships, noting that “to effectively fight these [corruption] offenses, strong partnerships and cooperation with our international counterparts is mission critical. . . . Working with foreign authorities allows us to be force multipliers. It makes evidence easier to obtain, leaves criminals fewer places to hide, and helps us recover criminal proceeds.”^[223]

Greater investigative resources not only assist American authorities in prosecuting corruption cases but also enhance the deterrent effect of the FCPA.^[224] The more foreign governments invest resources in criminal investigations and the better the information is shared, the more likely it is that firms’ corrupt practices will be detected. The DOJ has recently established the International Corporate Anti-Bribery (ICAB) initiative to strengthen partnerships with foreign counterparts.^[225] Although this initiative may simply institutionalize existing relationships,^[226] it advertises to firms the DOJ’s focus on more transnational investigations.^[227]

2. Greater Legitimacy.—Global FCPA settlements also begin to address foreign criticism that U.S. enforcers give American multinationals an economic advantage.^[228] U.S. officials will undoubtedly continue prosecuting firms in competition with American companies, many of which have significant economic or strategic importance to their home governments. The legitimacy of these cases is enhanced by involving the firm’s home government in the resolution negotiations. While the foreign government may have preferred not to investigate the case or to resolve it quietly (and leniently), this approach is an improvement over unilateral American action.

For example, after the passage of Loi Sapin II, the French and the American governments concluded their first joint corruption settlement in the case of Société Générale, a multinational financial services firm.^[229] The French government and American authorities split the financial penalties equally for the FCPA charges.^[230] American authorities assessed a $585 million criminal penalty, but credited Société Générale with $292.7 million that the firm paid to French prosecutors.^[231] The DOJ demanded that the firm adopt enhanced compliance procedures but permitted the firm to be monitored by the French government,^[232] rather than an independent American monitor, which was evidently important to French authorities.^[233] Compared to Alstom,^[234] this case highlighted the benefits to foreign authorities of engaging in their own anti-bribery investigations, as well as the American authorities’ willingness to share criminal penalties and compromise on the impositions of American monitors.

3. Minimizing the Risks from Corporate Self-Reporting.—The DOJ and SEC both strongly encourage corporations to self-report breaches of the FCPA (as well as other laws).^[235] Enforcement authorities view self-reporting as a critical tool, particularly in FCPA cases where violations may be hard to detect.^[236] Self-reporting is also part of the compliance regime that American authorities hope to foster where firms are part of the enforcement process.^[237] Firms adopt compliance programs to prevent foreign bribery, monitor their practices, and report violations.^[238] American authorities reward self-disclosure with leniency in fines and mandates.^[239] The most recent DOJ revision to its Corporate Criminal Enforcement Policy (CEP) highlights that corporations that self-report FCPA violations are eligible for leniency ranging from a 75% reduction in their fine (from a previous baseline of 50%) to declinations if the firm meets three conditions: the firm reports “immediately,” has an effective compliance program, and its cooperation with authorities and remediation is “extraordinary.”^[240]

However, the possibility of prosecutions in multiple jurisdictions can be a strong disincentive to self-reporting.^[241] Firms that face prosecution in other jurisdictions after reaching an agreement in one will be reluctant to open themselves up to duplicative liability.^[242] When firms weigh the costs and benefits of voluntary disclosure, the rewards American authorities offer may not be sufficient to balance the costs of potentially litigating several jurisdictions.^[243] Firms may remain silent and risk a more punitive prosecution if caught.^[244]

Global settlements can reduce the risks of self-reporting. They can consolidate the most likely enforcers and establish a set of binding parallel settlements, thereby reducing the risk of additional litigation post-settlement. Nonetheless, firms may remain open to foreign claims, particularly in countries where their corrupt practices occurred. For instance, in the Airbus corruption case, Airbus disclosed its foreign bribery in multiple countries to American, French, and U.K. regulators.^[245] It reached a $3.9 billion resolution with those governments.^[246] Although Airbus remains open to claims by government regulators in the countries it bribed, including Malaysia, Sri Lanka, Taiwan, Indonesia, and Ghana,^[247] the global settlement provided some legal certainty from the more active enforcers. Thus far, only Malaysia appears to be investigating Airbus’s actions and potentially bringing a claim.^[248]

4. Compensating Foreign Governments Where Corrupt Practices Occurred.—American officials also appear to be making a more significant effort to engage with governments where corrupt practices occur. The U.S. policy of retaining all the criminal penalties from FCPA resolutions has come under fire from some civil society organizations.^[249] Most notably, the World Bank’s Stolen Assets Recovery Initiative (StAR) published a report critiquing the United States’ refusal to return criminal penalties, disgorged profits, or other penalties to countries where corruption occurred.^[250] While the U.S. government has not explicitly responded to the report, and other commentators have disputed that the United States is under any international legal obligations to share criminal proceeds,^[251] American authorities appear to be sensitive to the need to include the states where bribery occurred when feasible.^[252]

There are still relatively few global settlements that involve countries where the corruption occurred, although this occurs more frequently when the firm is based in the country where the corruption occurred. For example, American cooperation with Brazil on the Odebrecht and Petrobras cases is notable. In both cases, the United States credited Brazil with most of the criminal penalties. In the Odebrecht settlement, the United States and Switzerland agreed to receive 10% of the criminal penalties each and credit Brazil with the remaining 80%.^[253] In the Petrobras case, U.S. authorities received 20% of the fine (10% to the DOJ and SEC each), and Brazil was credited with 80% of the fine.^[254] Brazil has a corporate diversion procedure in its domestic law,^[255] so it is easier for American authorities to cooperate with Brazil in this manner.

Even where governments do not have non-trial resolution procedures similar to DPAs/NPAs, the U.S. government appears to be making significant efforts to include injured states. For instance, in the Goldman Sachs FCPA resolution, the firm admitted to paying over $1 billion in bribes to government officials in Malaysia and Abu Dhabi to underwrite bonds for the Malaysian Development Bank (the 1MBD Scandal).^[256] According to American authorities, the corruption around the Malaysian Development Bank scheme deprived the country of $4.5 billion.^[257] In the global settlement, Goldman Sachs paid a record-breaking $3.9 billion criminal penalty, and the United States credited Goldman’s payment of $606 million to Malaysia, $126 million to the United Kingdom, $122 million to Singapore, and $100 million to Hong Kong.^[258] By including states where corruption occurred, the DOJ can essentially provide ad hoc compensation to these states by crediting the amounts firms pay foreign governments. It is difficult to speculate whether these other governments, acting alone, could have extracted similar penalties from Goldman Sachs. Malaysia and Goldman Sachs are now in arbitration regarding how much the firm continues to owe Malaysia,^[259] which may suggest that the firm is more willing to challenge the Malaysian government than the U.S. government.

Recently, the United States has concluded global settlements with South Africa, Colombia, and Ecuador for cases where bribery occurred in their territory.^[260] American authorities can use the threat of high penalties and robust enforcement procedures to encourage firms to resolve these cases. Essentially, the injured state can lean on the U.S. authorities’ greater sanctioning ability and enforcement credibility to extract larger penalties from firms than they could if acting independently. Smaller countries, such as Colombia or Ecuador, which might have difficulty holding major multinational firms accountable for local bribery, can expend fewer resources and receive more compensation (and receive it faster) by participating in a global settlement. Collaborating on American FCPA prosecutions may also allow developing governments to avoid appearing hostile to foreign investment and thereby risk losing new investment.^[261]

Yet these efforts to compensate injured states are still in their infancy. It is still not common practice for the United States to engage the countries where the corruption occurred. U.S. authorities’ reticence in including these governments may stem from multiple sources, including the willingness of the government to aid in the investigation, the speed with which the government can conclude a resolution, and diplomatic relations with the state. In addition, American officials do not want to include injured states in a global settlement where current high-level government officials are involved in corrupt activity (as this may be viewed as returning funds to corrupt actors).^[262]

Until recently, the United States had chosen to invest in the DOJ’s Kleptocracy Initiative to return embezzled or otherwise misappropriated assets to injured states as their primary means of compensation, rather than global settlements.^[263] The Kleptocracy Initiative aims to seize the proceeds of foreign corruption held in the United States and repatriate those assets to foreign governments (often with conditions on the assets’ use and demands for monitoring).^[264] In the 1MDB case, the Kleptocracy Initiative has brought over 40 civil asset forfeiture claims for misappropriated assets and returned over $1.4 billion to Malaysia.^[265] The United States also engages other states to establish principles for the return of stolen assets through the Global Forum on Asset Return organized (in part) through the World Bank.^[266] Global settlements are therefore not an effective general vehicle for sharing assets with injured states, but there are significant rewards for the injured states involved in global settlements.

5. Limits to Cooperation.—Diplomatic concerns about forum shopping limit American authorities’ readiness to cooperate with foreign enforcement officials.^[267] U.S. regulators have established working relationships with about a dozen countries, but their commitment to include others in FCPA settlements appears to require a certain level of trust and the foreign government’s ability to resolve cases through non-trial resolution mechanisms. It is not surprising that the U.S. regulators have not coordinated a settlement with China, even though many FCPA cases have involved corrupt practices in China. However, it is more surprising that U.S. authorities have not done so with Mexico.^[268]

Beyond diplomatic and procedural fit, the DOJ has expressed strong concerns about forum shopping creating a race to the most lenient prosecutors.^[269] This is a concern about maintaining adequate deterrence.^[270] American authorities clearly want to prevent firms from self-reporting to a sympathetic jurisdiction and expecting American authorities to defer to that nation’s regulators.^[271] As Deputy Attorney General Rosenstein noted, “we will not look kindly on companies that come to the Department of Justice only after making inadequate disclosures to secure lenient penalties with other agencies or foreign governments. In those instances, the Department will act without hesitation to fully vindicate the interests of the United States.”^[272] American authorities have forcefully announced that they will not agree to global resolutions where corporations covered by the FCPA do not first self-report to American authorities or simultaneously self-report to multiple agencies, including the United States.^[273] This limits U.S. cooperation to cases where it maintains control in the resolutions, even if the United States does not retain most of the criminal penalties.

This constraint on cooperation indicates that American authorities will demand to be in the driver’s seat even in cases where the United States does not have the most significant contacts to the corrupt practices. These dynamics are clearest in the Airbus case.^[274] Airbus did not list on a U.S. stock exchange and is not an American firm,^[275] yet American authorities were unwilling to defer to the U.K. and French enforcers,^[276] despite the French government’s desire to demonstrate its credibility, capacity, and independence.^[277] The United States charged Airbus under the FCPA and the Arms Export Control Act.^[278] The jurisdictional hook under the latter claim is clearer as Airbus had made false disclosures to the United States regarding sales of defense technology and equipment to foreign governments.^[279] American officials justified their need to be involved in the resolution to emphasize the “ability of [American] prosecutors” to punish foreign corruption “at the highest levels.”^[280] Notwithstanding this, the United States acknowledged that France and the United Kingdom had strong interests and “compelling equities” in resolving the corruption charges and retained only about 15% of the criminal penalties.^[281] This appears to be an instance where the United States could have deferred to foreign prosecutors,^[282] but American authorities may have been concerned about establishing a precedent for foreign national champions to resolve corruption cases without American involvement.^[283]

In short, American officials have their own motivations for providing foreign governments with greater access to FCPA resolutions. U.S. regulators benefit from greater access to foreign investigative resources and information sharing without giving up control of the investigation or resolution. Individual prosecutors can also trumpet high enforcement penalties, even while crediting foreign governments with most of the penalties.^[284] In addition, global resolution can decrease the risks to corporations of self-reporting and provide a limited mechanism to share funds with states where corrupt practices occurred.

IV. International Cooperation in the Anti-Bribery Regime

This section first discusses how global settlements have influenced the structure of international cooperation. The anti-bribery regime has evolved from a negative comity regime to one of coordinated comity. Although this form of collaboration remains limited, it represents a significant shift in how states accommodate each other’s interests.

A. The Structure of International Cooperation in the Anti-Bribery Regime

How has the rise in global FCPA settlements altered the politics of international cooperation in the anti-bribery sphere? Unlike related economic and legal fields, such as international trade law, this is an area of economic and criminal law that is not characterized by robust supranational institutions. There are no formal rules for structuring multilateral negotiations between interested states or an international secretariat with agenda-setting powers. There are additionally no third-party dispute resolution mechanisms to adjudicate states’ divergent treaty interpretations. The closest the international anti-bribery regime comes to supranational supervision is the OECD Anti-Bribery Working Group, whose primary role is conducting peer reviews of states’ implementation and enforcement of the Convention^[285] and issuing non-binding recommendations.^[286]

The anti-bribery regime has a lean and decentralized institutional structure. The criminal law nature of the regime influences the high level of prosecutorial decision-making delegated to states. The OECD Convention is organized so that each state can decide whether to prosecute independently.^[287] The treaty does not give prosecutorial priority to any state (e.g., no preferences based on nationality, territoriality, or totality of contacts).^[288] Thus, the regime provides broad authorization to multiple national prosecutors to pursue anti-bribery claims but does not provide much guidance on resolving conflicts.^[289]

Before the rise of global FCPA settlements, enforcement was dominated by American anti-bribery prosecutions with minimal enforcement action taken by other OECD Convention members.^[290] As a form of international cooperation, this slim institutional coverage of uncoordinated and decentralized interstate engagement can be described as negative comity.^[291] Most states deferred to the United States rather than coordinating around a strong set of rules for who would have prosecutorial power. While OECD members agreed that foreign bribery was worthy of criminal prosecution, they preferred not to take any action themselves and assent implicitly to American jurisdictional claims.^[292]

The rise of global FCPA settlements is transforming this model of cooperation. Although cooperation among states is not highly institutionalized, governments are engaging in more enforcement activities instead of merely ceding authority to American prosecutors. More OECD countries are conducting investigations and prosecutions, even if their motives may be partially defensive. Increased enforcement by multiple governments has prompted states to acknowledge each other’s interests, contributions, and desires for a voice in the resolution process. This new cooperative model represents a thin form of coordinated comity. States are not bound by strict international law rules; rather, they depend on less formal norms to respect and accommodate one another’s legitimate state objectives.

1. Positive Comity in Global Competition Law.—Positive comity regimes exist elsewhere in the international system. For instance, global antitrust/competition law has long been governed by a robust positive comity regime.^[293] That regime derived from active conflict between American and European regulators over the appropriate jurisdictional limits of American antitrust law.^[294] American regulators had a relatively more aggressive and extraterritorial approach to antitrust law focused on consumer welfare.^[295] In contrast, European regulators were less focused on consumer welfare and more sympathetic to corporate participation in cartels.^[296] In the 1980s, American regulators pursued enforcement actions against European national champions, resulting in fierce push-back from corporations’ home governments, including the use of blocking statutes and anti-suit injunctions.^[297]

The open legal conflict eventually led governments to negotiate.^[298] In 1991, the United States and the European Community formed an agreement that mediated these jurisdictional disputes.^[299] The 1991 Agreement established a mechanism for determining prosecutorial priority by allowing either party to request enforcement action from the other, guided by a set of non-exclusive factors.^[300] The Agreement listed six non-exclusive factors the parties would consider when determining which state should bring an enforcement action.^[301] The Agreement additionally provided that either party could request that the other initiate antitrust enforcement actions if the actions occurring in the first state’s territory adversely affected important interests in the second state.^[302] This was deemed positive comity because it was respect for other states’ interests that led to affirmative action—not deference or restraint.^[303]

The 1991 Agreement did not require either state to take enforcement action, nor did it prohibit extraterritorial action. Nonetheless, it provided a mechanism through which the United States and the European Community could exchange information and consult.^[304] In 1998, the agreement was expanded to the “EU–US Positive Comity Agreement,” which further detailed the operation of positive comity cooperation and established presumptions for when states should defer to the others’ enforcement actions.^[305] There are now multiple bilateral competition agreements between states that include positive comity clauses.^[306]

Competition law’s positive comity is a strong form of cooperation to address conflicts that result from assertions of extraterritorial jurisdiction.^[307] States in which the anti-competitive behavior occurs consider undertaking enforcement actions to address one another’s antitrust concerns, and the other states largely defer to those actions.^[308] While there is a possibility for joint prosecutions, the regime is generally guided by strong presumptions about which state has priority in antitrust prosecutions, with others respecting these guidelines.^[309]

2. Coordinated Comity in Anti-Bribery Law.—Cooperation in anti-bribery law does not yet approach the level of cooperation as competition law’s positive comity regime.^[310] First, rather than requesting that foreign states enforce anti-bribery rules, the United States has shown little interest in relaxing its strong presumption to exercise its broad extraterritorial jurisdiction. A recent DOJ statement indicating that “it will not look kindly” on firms’ failure to self-disclose to American authorities first (or, at least, simultaneously with foreign authorities) signals the United States’ reluctance to rely on other governments to address the adverse effects of bribery on global competition.^[311] Second, American authorities do not seem interested in establishing guidelines prioritizing some states’ enforcement actions over others. Given the history of anemic enforcement by other governments, these positions are understandable, although the United States’ view may evolve based on better experience with foreign collaboration.

Rather than a robust positive comity regime, the anti-bribery regime is better characterized as a thinner coordinated comity regime. This regime is an improvement over negative comity, where the United States largely expected (and received) deference from foreign governments. The last decade has seen the rise of coordination between governments that accommodates foreign interests while maintaining the United States’ demand for a minimum standard that solves collective action concerns. The difference is notable. The United States is willing to negotiate changes to the corporate practices (particularly whether to have a monitor and the nationality of the monitor) as well as sharing the proceeds of financial penalties. Yet this is a weak form of positive comity. The United States retains the discretion to include or exclude states in any specific FCPA settlements and has not entered into any formal or informal agreements regarding the principles that govern this coordination.

Perhaps the most extensive cooperation in this coordinated comity regime is the DOJ’s willingness to share the proceeds of any financial penalties from FCPA settlements. In many cases, the United States has been willing to forgo hundreds of millions of dollars to accommodate the interests of foreign states. In three of the four largest FCPA settlements to date (Odebrecht, Airbus, and Petrobras), the United States agreed to receive less than 15% of the financial penalties assessed.^[312] In the fourth (Goldman Sachs), the United States agreed to credit other governments with nearly $1 billion. Here, American authorities may successfully demonstrate that their primary concern is establishing an extensive enforcement regime rather than collecting revenue.^[313] But, critics might note that, under a stronger positive comity model, U.S. authorities would have deferred to other governments’ enforcement of these cases and, thus, the American willingness to share penalties should be compared to a baseline of no collection—rather than full collection—of criminal penalties.

However, a coordinated comity regime does not fully address the critique that the United States has too much influence in the global anti-bribery regime and does not provide the policy space for alternative approaches. Specifically, some critics argue that the United States’ approach to foreign bribery is overly rigid and precludes local variations that could be more effective within particular countries.^[314] Kevin Davis, Guillermo Jorge, and Maíra Machado maintain that the United States has a unique view of what appropriate anti-bribery enforcement entails, including corporate liability and high penalties, and that the United States enforces this view extraterritorially even when there are few contacts between the United States and corrupt practice.^[315] This deprives other states of the ability to develop their policy views about what is appropriate and effective and then domestically implement those policies.^[316]

According to this critique, global settlements are a step back. Rather than allowing more regional variation or experimentation in anti-bribery enforcement, the new model further consolidates the American view. Foreign states are not developing their bespoke approaches but have adjusted their domestic anti-bribery rules to be compatible with the American model. While there is some variation between the forms of non-trial resolutions states that have recently adopted such mechanisms,^[317] the broader picture is that more states are gravitating towards the American model, substantively and procedurally. In this sense, the apparent harmonization of the anti-bribery regime with the American model may undermine the system’s effectiveness by not allowing other models to flourish.

While this critique correctly argues that the global settlement trend reflects a harmonization around the American enforcement model, the coordinated comity is a more collaborative regime than negative comity. The rise of global settlements creates space for more foreign voices in the FCPA process, greater accommodation of foreign interests, and enhanced sharing of criminal penalties. While the coordinated comity regime does not eliminate the strong American influence in the transnational bribery regime, as this critique suggests, it fosters more genuine cooperation among governments in addressing foreign corruption. Given the current state of international politics, the shift toward coordinated comity represents the most pragmatic means to advance foreign governments’ interests in developing global enforcement practices.

As a closing note, in a world of rising geopolitical tensions, the anti‑bribery regime’s system of thin coordinated comity may be more resilient than other more formalized agreements.^[318] The extremely flexible regime allows American authorities to adjust on a case-by-case and administration‑by‑administration basis.^[319] More institutionalized bodies in international economic law, such as the World Trade Organization, face crises as states resist formal constraints.^[320] By contrast, coordinated comity’s minimal constraints and delegation to lower-level government officials may be a better means of reaching mutual accommodation than a more institutionalized regime.^[321]

V. Do Global Settlements Improve the Transnational Anti-Bribery Regime’s Effectiveness?

The rise in global settlements has influenced the operation of the anti-bribery regime. However, has it improved its effectiveness? This section discusses the possible outcomes and concludes that the influence of global settlements on the effectiveness of the anti-bribery regime is positive but does have some potential drawbacks.

One of the main reasons American authorities engage in international coordination of FCPA resolutions is to gain better access to investigative resources and information sharing, thereby enhancing the global effectiveness of deterrence.^[322] All else being equal, global settlements will likely lead to more states dedicating more resources to investigate corrupt practices and generate more substantial and higher-quality evidence of foreign bribery. With this increase in resources, we can anticipate that governments will uncover more corrupt activities, leading prosecutors to bring more cases with higher criminal penalties and more comprehensive structural reforms. Additionally, global settlements encourage firms to self-report violations, as the increased threat of detection and reduced risks associated with self-reporting can prevent redundant prosecutions.^[323] These factors also increase the incentives for all firms to adopt more robust compliance programs proactively.^[324] All of this indicates that global settlements should increase the regime’s effectiveness when judged by detection, deterrence, and reforms to corporate behavior.

However, there are some contraindicating factors. First, including more foreign authorities in the FCPA resolution negotiations may push American prosecutors towards more leniency than they would adopt unilaterally. Other states have lower bars for corporate responsibility, generally assess lower financial penalties, and may be less demanding regarding structural reforms to the corporation. If many foreign governments’ interest in global settlements is driven by a desire to have a voice in FCPA resolutions affecting their national firms, they may want more than an inclusive process—they may want substantively weaker resolutions.

So far, this fear of increased leniency in global settlements has not been a significant concern. Global settlements have higher financial penalties on average than unilateral FCPA settlements.^[325] This indicates that these resolutions are not notably weaker than non-global settlements—at least on the penalty side. Nevertheless, this might not be an apples-to-apples comparison. Global settlements can, on average, involve more elaborate and far-reaching corruption schemes than unilateral settlements. As a result, global settlements might be more lenient given the totality of corrupt behavior involved. It is also possible that American regulators are more willing to compromise on the structural reform needed in global settlements—such as not demanding a monitor or permitting a foreign monitor.

Second, some critics view the increased use of DPAs or other non-trial resolutions as inherently more lenient than trial resolutions.^[326] They argue that these agreements allow firms to pay fines that are not effective, proportionate, or dissuasive,^[327] and imply that demanding trials or guilty pleas would result in higher and more meaningful penalties.^[328] To the extent that global settlements increase states’ use of non-trial resolution, these critics view the diffusion of the DPA model as a step backward in the regime’s effectiveness.^[329] However, it is far from clear that non-trial resolutions result in less deterrence.^[330] Foreign corruption prosecutions are difficult to prove as an evidentiary matter, so prosecutors may lose at trials or face extensive appeals from deep-pocketed firms.^[331] In addition, trials require significant resources, and fewer cases will be prosecuted. National judges may also not be as concerned about punishing foreign crimes when there are high collateral consequences for domestic employees or shareholders. Judges, thus, may not extract high penalties even if the firm pleads or is found guilty.^[332] These concerns led the OECD Working Group 2021 Recommendations to encourage states to consider adopting non-trial resolutions to combat foreign bribery more effectively.^[333]

Finally, the deterrence of the regime may depend on the prosecution of individuals (as well as firms).^[334] The DOJ has repeatedly highlighted the importance of prosecuting responsible individuals within firms as a critical part of its enforcement strategy.^[335] However, critics have argued that DPAs and other non-trial resolution mechanisms allow prosecutors to appear to address corporate crime while not pursuing culpable individuals.^[336]

While this Article does not focus on individual prosecutions, the question of whether global settlements make prosecuting individuals more or less likely is important. Global settlements often attract popular attention, which leads governments to insist on individual prosecutions. For instance, in the Goldman Sachs matter, the DOJ successfully prosecuted two Goldman Sachs traders for foreign bribery,^[337] and Malaysian prosecutors convicted former Prime Minister Najib Razak.^[338] The Brazilian government prosecuted multiple individuals for bribery associated with the Odebrecht and Petrobras cases, including (then former) President Lula da Silva^[339] and Odebrecht CEO Marcelo Odebrecht.^[340] Global settlements may also motivate governments to prosecute individuals at home rather than extraditing nationals to the United States, where criminal sentences are generally higher. Finally, more investigative resources may lower the costs of prosecuting individuals if more and better evidence is available. However, it remains unclear how the diffusion of non-trial resolutions to other states influences each country’s internal decision-making over whether to prosecute individuals.

In summary, the rise of global settlements will likely enhance the effectiveness of the transnational anti-bribery regime. Increased foreign participation in the investigation and prosecution of corrupt activities is expected to uncover more corruption schemes and provide stronger evidence to prosecute firms and individuals. This strengthens the FCPA’s deterrent effect and makes firms more likely to adopt more robust compliance programs and self-report violations to authorities. There are some reasons for concern, including the greater possibility of leniency and the possibility that more reliance on non-trial resolutions will lead to less deterrence than the threat of trials. However, the increase in international cooperation in anti-bribery law will most likely make the anti-bribery regime more effective.

VI. Current Policy Implications

The success of the American strategy of establishing a robust baseline of enforcement against foreign and domestic firms is relevant to current policy debates regarding the optimal FCPA enforcement guidelines. This Part discusses the 2025 executive order suspending FCPA enforcement and the June 2025 DOJ memorandum providing new guidance on FCPA enforcement. This Part begins by analyzing the 2025 executive order and examining whether the FCPA harms the global competitiveness of American firms, as the executive order implies. Next, this Part analyzes the DOJ’s new guidance and its implications for American enforcement priorities as well as foreign governments’ enforcement.

A. The 2025 Executive Order

On February 25, 2025, President Trump issued an executive order directing the Attorney General to revise FCPA enforcement guidelines and pause FCPA enforcement for 180 days while the new guidelines were being drafted.^[341] President Trump has long had reservations about the FCPA. In his first term, he referred to the FCPA as a “horrible” law and expressed interest in repealing it.^[342] But these statements did not affect the federal government’s enforcement policy.^[343] The DOJ and SEC maintained robust enforcement policies.^[344] Trump Administration appointees also issued the Anti-Piling On Policy, which institutionalized the global settlement model.^[345]

However, the second Trump Administration has different policy priorities. Even before the February 25 executive order (E.O.), Attorney General Bondi announced that the FCPA would be redirected to focus on eliminating cartels and foreign organized crime groups.^[346] The E.O. took this a step further. It directed the Attorney General to review existing cases with an eye to taking “appropriate action . . . to restore proper bounds on FCPA enforcement” and issue updated guidelines and policies to “promote the President’s Article II authority to conduct foreign affairs and prioritize American interests [and] American economic competitiveness with respect to other nations.”^[347] The E.O. also gives the Attorney General the power to suspend FCPA enforcement indefinitely and requires the Attorney General to authorize any new FCPA action.^[348] Interestingly, the E.O. does not impose any obligations on the SEC, which also enforces the FCPA’s books and records requirements on public firms.

The E.O. emphasizes the Trump Administration’s view that revision of FCPA enforcement is essential to promoting American firms’ global competitiveness, noting,

The President’s foreign policy authority is inextricably linked with global economic competitiveness of American companies. American national security depends in substantial part on the United States and its companies gaining strategic business advantages . . . . It is therefore the policy of my Administration to preserve the Presidential authority to conduct foreign affairs and advance American economic and national security by eliminating excessive barriers to American commerce abroad.^[349]

Indeed, the E.O. even appears to support American firms engaging in foreign bribery if doing so would provide “strategic business advantages” that “advance American economic and national security.”^[350]

B. Implications for American Firms’ Global Competitiveness

The belief that the FCPA disproportionately burdens American businesses is a common one.^[351] However, examining the record of FCPA prosecutions and penalties provides a more complex and nuanced narrative that illustrates the costs and benefits of strong FCPA enforcement for American businesses. FCPA enforcement has been enforced (and can continue to be enforced) in a manner that promotes the competitiveness of American firms.

On average, American firms are more likely to be the targets of DOJ or SEC prosecutions. In an empirical study of FCPA resolutions from 1978 to 2018, Diamant et al. found that 65% of all cases were brought against domestic firms (foreign firms represent 35%).^[352] The FCPA Clearinghouse estimates that from 1977 to the present, 59% of cases have involved domestic firms, while 41% have involved foreign firms.^[353]

However, foreign firms face much higher FCPA penalties than American firms.^[354] As the Top Ten FCPA list illustrates, foreign firms overwhelmingly pay the highest fines, representing nine out of the top ten penalties.^[355] This pattern remains true outside of the top ten list. Diamant et al. found that the average penalty for U.S. companies was less than a third of that for foreign companies.^[356] These results are consistent with an earlier empirical study by Choi and Davis examining FCPA cases before 2014.^[357] They found that U.S. companies were more likely to be prosecuted, but foreign firms received higher penalties.^[358]

There are non-discriminatory reasons why foreign firms might face higher penalties. Domestic companies may be more familiar with FCPA requirements and have stronger compliance programs. The U.S. business community has more experience with the FCPA and thus may have internalized the rules or adopted more robust anti-bribery compliance systems than foreign firms.^[359] American firms may also be more willing to self-report violations to authorities and be more inclined to cooperate with the government’s investigations.^[360] Effective compliance programs, self-reporting, and cooperation can substantially lower a firm’s fines for FCPA violations.^[361] By contrast, foreign firms that have not internalized anti-bribery business norms may have few procedural hurdles within their firms to supplying bribes and may offer foreign government officials larger payments. Weaker compliance programs could also lead to the overt involvement of C-suite executives in bribery schemes. Foreign firms may additionally be less willing to involve American prosecutors early and resist fully cooperating with government requests. Of course, there is the risk that U.S. enforcement is biased in favor of American firms, a belief held by some foreign observers.^[362]

As the record of FCPA prosecution demonstrates, the U.S. effort to pull foreign firms into the FCPA’s jurisdictional net and enforce anti-bribery norms globally is intentional.^[363] The DOJ and SEC pursue domestic and foreign firms, making the FCPA competition neutral relative to firms in other large exporting countries.^[364] The pattern and practice of U.S. FCPA enforcement has not penalized domestic firms to the advantage of foreign firms.^[365] Major American firms can fear running afoul of the FCPA, but so can most of their major foreign competitors.

Other scholars similarly find that the FCPA does not disproportionately burden American firms and can be beneficial.^[366] Perlman and Sykes explored the question of who gains and loses from FCPA enforcement and found that the statute provides American firms with several advantages, some relating to foreign officials and some relating to foreign competitors.^[367] Perlman and Sykes first note that the FCPA can increase business leaders’ bargaining power with foreign government officials.^[368] Particularly where corporations have significant sunk investments and face ex post demands for bribes, the credible threat of FCPA sanctions can improve the American firms’ ability to resist extortion and maintain greater profits over the longer term.^[369] The ban on bribery also prevents companies from facing more (and higher) demands for bribes, as often happens when firms initially agree to pay a bribe.^[370] In essence, bribing begets demands for more bribes: government officials realize the firm will pay bribes and then create regulatory hurdles that create yet more opportunities to demand corrupt payments.^[371] Perlman and Sykes also highlight the broad jurisdictional scope of the FCPA and the pattern of U.S. enforcement.^[372] They concur that the DOJ and SEC use their extraterritorial jurisdiction to ensure that foreign rivals to American firms face similar FCPA costs.^[373]

In short, suspending the FCPA does not benefit American firms over foreign firms, particularly for publicly listed firms. The United States’ FCPA enforcement has created a near-global baseline for public companies prohibiting foreign corruption.^[374] American firms face prosecution but so do their rivals, including Airbus, Petrobras, and Siemens.

C. The New DOJ Memorandum on FCPA Enforcement Guidance

The DOJ released a memorandum on June 9, 2025, outlining new guidance regarding its plans and priorities for FCPA enforcement.^[375] Importantly, the DOJ stated that it intended to continue enforcing the FCPA.^[376] However, the memorandum’s enforcement priorities raise significant questions about which firms will be targeted and how rigorous enforcement will be under this administration. The DOJ guidance reaffirmed the E.O.’s goals, aiming to reduce the FCPA’s “undue burdens on American companies that operate abroad” and to focus on conduct that “directly undermines U.S. national interests.”^[377] The memorandum listed four factors that will guide the department’s investigations and prosecutors: (1) whether the firm’s activities were linked to cartels or transnational organized crime, (2) whether the firm’s actions deprived a U.S. company of foreign business opportunities, (3) whether the firm’s activities posed a risk to U.S. national security by involving critical infrastructure assets (e.g., deep-water ports or critical minerals), and (4) whether the firm’s actions involved “serious misconduct” rather than facilitation or expediting payments.^[378] At the same time, the DOJ has reduced its number of FCPA attorneys by half, signaling that they do not plan to sustain the previous pace of enforcement.^[379]

The memorandum clarifies that the DOJ does not intend to forgo FCPA enforcement for the rest of the administration, but the guidelines raise important questions about the scale of enforcement and whether all firms will face the same level of scrutiny. The second and third factors highlight that FCPA enforcement may intentionally focus on foreign, not domestic, companies. The DOJ’s second factor explicitly instructs prosecutors to use the FCPA to “safeguard fair opportunities for U.S. companies.”^[380] The memorandum emphasizes that a key goal of FCPA enforcement should be to support the economic growth and international expansion of U.S. business abroad by targeting bribery that prevents U.S. firms from obtaining foreign business. The memorandum states that enforcement will not be based on firms’ nationality. However, it explicitly urges prosecutors to consider whether “the alleged misconduct deprived specific and identifiable U.S. entities of fair access to compete and/or resulted in economic injury to specific and identifiable American companies or individuals.”^[381]

The emphasis on the loss of business opportunities for American firms places the DOJ’s enforcement focus squarely on foreign firms. While it is theoretically possible for the DOJ to pursue an American firm whose bribes cause another American firm to lose overseas opportunities, the guidance is clear: enforcement will primarily target foreign companies that use bribery to hurt American businesses. American companies that use bribery to damage foreign firms’ business prospects do not seem to be a major concern.

The third factor also emphasizes enforcement against foreign firms. The memorandum reiterates the E.O.’s emphasis that the U.S. government and American firms must gain a strategic business advantage in acquiring or controlling key infrastructure.^[382] It states that “strategic competitors often exploit rather than discourage corruption and state weakness to extract resources” and emphasizes that FCPA enforcement will focus on addressing this threat to our national security.^[383] Given that the memorandum considers American ownership or control of key infrastructure assets as essential to national security goals, American individuals and firms that make corruption payments appear unlikely to be a prosecutorial priority under this third factor. Instead, the focus is on prosecuting foreign firms that use corruption to gain control of these assets.

These two factors, along with the memorandum’s focus on easing the FCPA’s burden on American companies, raise questions about whether the Trump administration intends an “America First” approach to FCPA enforcement. The memorandum provides some reassurance that the DOJ will keep enforcing the FCPA, but it suggests enforcement will be skewed toward advantaging American industry. In fact, the head of the DOJ’s Criminal Division, Matthew Galeotti, has publicly stated that the new enforcement guidelines are designed to benefit American companies and provide a “vindication of U.S. interest.”^[384] At this point, we don’t know how the new strategy will unfold in practice—we don’t know if the government will pursue many cases or who will be targeted.^[385] However, the clear message from the memorandum is that the main focus will be on investigating and prosecuting foreign companies that undermine American firms’ competitiveness or seek control of geopolitically sensitive assets.

An America First enforcement strategy raises several concerns. First, this approach violates the OECD Anti-Bribery Convention. Article 5 states:

Investigation and prosecution of the bribery of a foreign public official shall be subject to the applicable rules and principles of each Party. They shall not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved.^[386]

The memorandum breaches Article 5 by explicitly stating that the United States’ national interest influences its enforcement strategy to target foreign firms. It makes clear that prioritizing prosecution of entities harming American individuals or firms’ foreign business opportunities is based on “safeguarding U.S. national security and economic prosperity.”^[387] Likewise, the focus on prosecuting foreign firms seeking to acquire or control key infrastructure assets is based on U.S. national security interests. Article 5 also requires that enforcement not depend on the nationality of the involved natural or legal persons. The memorandum appears to exempt American firms or individuals from FCPA enforcement priorities by explicitly de-prioritizing American actions, thereby influencing DOJ policy based on the nationality of the persons involved.

Second, this strategy damages the United States’ reputation for enforcing the FCPA against both foreign and domestic companies. While foreign governments may have often been skeptical that American prosecutors are truly impartial to the parties’ nationalities, the United States has built a track record of prosecuting both American and foreign entities. In doing so, the United States established a solid baseline for fighting corruption abroad among major multinational corporations. The new memo marks a significant departure from that stance. The DOJ’s updated guidelines clearly describe an enforcement approach that favors prosecuting foreign firms over American ones to give American companies a business edge. This strategy is not competition-neutral between firms of different nationalities but aims to favor American firms through selective prosecution.

Third, this strategy likely signals the end, or at least a significant decline, in global FCPA settlements. The rationale behind these settlements has been that American prosecutors were even-handed in FCPA enforcement and willing to collaborate with foreign governments to bolster anti-corruption efforts. An America First enforcement approach alters this landscape, impacting both American and foreign authorities. Foreign regulators will be far less likely to cooperate with the DOJ or SEC if they believe their firms are being selectively prosecuted to meet American parochial aims that favor American firms. They will be more inclined to protect their firms against what they see as discriminatory enforcement and to withhold resources or evidence that could aid these prosecutions.

The DOJ will also be less likely to pursue global resolutions of FCPA claims. It appears unlikely that the Trump Administration would be open to reducing its own FCPA criminal and civil penalties to facilitate international settlements. The current administration has shown little willingness to cooperate or compromise with other governments, even allies, making it unlikely to coordinate prosecutions or credit firms’ payments to foreign authorities. Additionally, the Trump Administration disbanded the DOJ’s Kleptocracy Initiative—the way the United States returned stolen or misappropriated assets it had seized to other governments—signaling it is less willing to share the proceeds of criminal investigations.^[388] For at least the next four years, the trend toward increased cooperation in transnational anti-corruption enforcement is likely to reverse.

Even with this new DOJ guidance, most American public firms are unlikely to engage in bribery even if the FCPA enforcement is less robust during this administration. First, the lower enforcement does not provide American firms with immunity. The FPCA’s statute of limitations runs for five years for the anti-bribery provisions and six years for book and record violations (before any tolling), so firms remain liable for violations.^[389] Second, engaging in bribery requires violating a host of other criminal and civil statutes. Unless the firm is willing to report its bribery openly, mischaracterizing transactions violates the FCPA and Sarbanes-Oxley (which comes with individual liability for executives).^[390] Foreign bribery can also violate other federal laws, including the Travel Act, federal money laundering statutes, mail and wire fraud statutes, and tax regulations.^[391] State laws are also relevant. For firms incorporated in Delaware or other U.S. states, bribery can create liability under shareholder suits (the Caremark standard in Delaware) and fair competition statutes. ^[392] The bottom line is that offering foreign bribes remains risky.

If the current administration is now less willing to prosecute its own firms for FCPA violations, will other OECD member states compensate for the American retreat and pursue American firms? As this Article discusses, foreign governments have become much stronger enforcers of foreign anticorruption laws in response to American extraterritorial prosecutions.^[393] Although many foreign officials were initially motivated to adopt strong anti-bribery statutes in response to their experience with American prosecutions,^[394] many of these legal regimes have now gained their own momentum. The British, German, French, and Swiss governments now regularly bring cases against national firms engaged in bribery.^[395]

Foreign governments have shown some interest in trying to fill the enforcement gap left by the United States. For instance, the French, British, and Swiss governments announced that they are forming an International Anti-Corruption Prosecutorial Taskforce to structure and strengthen cooperation between the three nations on anti-bribery enforcement.^[396] There is also the possibility that foreign governments, wishing to push back against the Trump Administration’s policy agenda, will provide prosecutors with more resources and political support.

However, there are reasons to doubt that foreign prosecutors can fill the shoes of the DOJ and SEC prosecutors. While foreign governments have increased their investment in response to the threat of unilateral American prosecutions against their national firms,^[397] they do not bring nearly as many cases as American prosecutors.^[398] Between 2018 and 2021, the United States concluded 145 foreign bribery cases that applied penalties, while France, Germany, Switzerland, and the United Kingdom together concluded approximately half that, concluding 73 foreign bribery cases that applied penalties.^[399] Even the new International Anti-Corruption Prosecutorial Taskforce has tried to manage expectations, stating, “We don’t expect immediate results, but more medium or even long-term results.”^[400]

Now that the Americans are decreasing their investment in anticorruption prosecutions, will other OECD members similarly lose interest in foreign corruption? It is simply speculation at this moment, but it could go either way. Once foreign governments have created institutions to support foreign corruption prosecutions, these institutions can take on a life of their own and pursue their mission even if underlying conditions change. But foreign governments may also be wary of continuing to investigate and prosecute their national champions if the American government is no longer going to do the same for American companies.

Notwithstanding the current political climate, American interests in enforcing the FCPA are not likely to diminish in the long term. Since the early 2000s, the FCPA has enjoyed bipartisan support and has proven to be an essential tool in tackling widespread challenges to global commerce and economic development. Furthermore, anti-corruption enforcement has now crossed national borders, supported by corporate self-reporting and an increase in foreign investigations. Consequently, this administration’s executive order and new guidance do not necessarily reflect a broader rejection of anti-bribery enforcement; rather, they signify a short-term departure from a well-established practice. FCPA enforcement and the growing prevalence of global settlements will likely remain crucial elements of corporate and anti-corruption law.

Conclusion

The global anti-bribery regime has already developed significantly. When the FCPA was passed in 1977, governments widely accepted and even facilitated foreign corruption in international business transactions.^[401] Although the FCPA was on the books, the United States refrained from utilizing the FCPA’s muscular penalties until it could do so without asymmetrically harming American businesses.^[402] The passage of the OECD Anti-Bribery Convention, with its endorsement of extensive enforcement principles, changed the game for American authorities, providing them with the leverage to enforce the FCPA against most major multinational firms—domestic or foreign.^[403]

The anti-bribery regime has experienced another major development. Concerns with delegating prosecutorial power over national firms to American officials have led more foreign governments to reform their anti-bribery regimes and invest additional resources into enforcement, thereby gaining a seat at the negotiating table. The shift has directed greater investigative resources toward anti-bribery efforts and led to more prosecutions with larger penalties. Governments regularly accommodate one another’s interests, jointly determine appropriate penalties, and divide financial penalties.

The evolution of the anti-bribery regime from negative comity to coordinated comity may not be the endgame. The regime remains thinly institutionalized and highly discretionary. Global settlements are likely to decrease under the current administration, but over the longer term, the outlook is more optimistic. More experience with foreign counterparts and the further development of foreign prosecutorial resources could convince American authorities that establishing binding principles will create better conditions for international cooperation. However, American domestic politics and geopolitical headwinds will certainly slow this development in the near term.

1. . Press Release, U.S. Dep’t of Just., ABB Agrees to Pay Over $315 Million to Resolve Coordinated Global Foreign Bribery Case (Dec. 2, 2022) [hereinafter Press Release, ABB Agrees], https://www.justice.gov/archives/opa/pr/abb-agrees-pay-over-315-million-resolve-coordinated-global-foreign-bribery-case [https://perma.cc/U2JZ-ZMM8]. ↑
2. . Press Release, U.S. Sec. & Exch. Comm’n, ABB Settles SEC Charges That It Engaged in Bribery Scheme in South Africa (Dec. 3, 2022), https://www.sec.gov/newsroom/press-releases/
   2022-214 [https://perma.cc/UB5Y-ZZL5]. ↑
3. . Id. ↑
4. . Press Release, ABB Agrees, supra note 1; see infra note 32 and accompanying text (discussing the FCPA’s applicability over foreign companies that are listed on a U.S. securities exchange). ↑
5. . Case Information: In the Matter of ABB Ltd., Stan. L. Sch. Foreign Corrupt Pracs. Act Clearinghouse: Enf’t Action Dataset [hereinafter FCPA Dataset: ABB Ltd.], https://fcpa.stanford.edu/enforcement-action.html?id=877 [https://perma.cc/HD3Q-ADAA]. ↑
6. . The Man with the Plan to Fix Eskom, The Economist (July 14, 2022), https://www
   .economist.com/business/2022/07/14/the-man-with-a-plan-to-fix-eskom [https://perma.cc/SQ42-L5NY]. ↑
7. . Joseph Cotterill, South Africa GDP Shrinks 1.3% after Power Cuts Strangle Economy, Fin. Times (Mar. 7, 2023), https://www.ft.com/content/c1168eef-2869-47b3-a597-471f485b7009, [https://perma.cc/8VH2-JBQS]. ↑
8. . Alexandra Wexler, South Africa Seeks State Power Chief After CEO Says He Was Poisoned, Wall St. J. (Jan. 23, 2023), https://www.wsj.com/articles/south-africa-seeks-state-power-chief-after-ceo-says-he-was-poisoned-11674252590 [https://perma.cc/GC7B-LBY6]. ↑
9. . Id.; Joseph Cotterill & David Pilling, Boss of South Africa Power Producer Eskom Survives Poisoning Attempt in December, Fin. Times (Jan. 8, 2023), https://www.ft.com/content/2c3cb585-a4c9-4a26-9ea4-c22e1aded598 [https://perma.cc/DV2K-2Q2B]. ↑
10. . FCPA Dataset: ABB Ltd., supra note 5. ↑
11. . Id. In 2020, ABB paid South Africa around $91.5 million in damages for its kickback scheme involving Eskom. Anna Bianna Roach & Alice Johnson, ABB to Pay $327 Million in Multilateral Bribery Resolution, Glob. Investigations Rev. (Dec. 2, 2022), https://globalinvestigationsreview.com/article/abb-pay-327-million-in-multilateral-bribery-resolution [https://perma.cc/2JQH-AYR4]. Other sources put the damage award at closer to $104 million. Dylan Tokar, ABB Nears Deal to Resolve Third U.S. Bribery Case Against Company, Wall St. J. (Nov. 25, 2022), https://www.wsj.com/articles/abb-nears-deal-to-resolve-third-u-s-bribery-case-against-company-11669407951 [https://perma.cc/YBH5-XRAQ]. ↑
12. . Press Release, U.S. Dep’t of Just., SAP to Pay Over $220M to Resolve Foreign Bribery Investigations (Jan. 10, 2024) [hereinafter Press Release, SAP], https://www.justice.gov/archives/
    opa/pr/sap-pay-over-220m-resolve-foreign-bribery-investigations [https://perma.cc/2B6B-L2X8]; Press Release, U.S. Dep’t of Just., McKinsey & Company Africa to Pay Over $122M in Connection with Bribery of South African Government Officials (Dec. 5, 2024) [hereinafter Press Release, McKinsey & Company], https://www.justice.gov/archives/opa/pr/mckinsey-company-africa-pay-over-122m-connection-bribery-south-african-government-officials [https://perma.cc/6LUA-7YUW]. ↑
13. . Sharon Oded, Multi-Jurisdictional Anti-Corruption Enforcement: Time for a Global Approach, 28 J.L. & Pol’y 510, 531 (2020). ↑
14. . Rachel Brewster, Enforcing the FCPA: International Resonance and Domestic Strategy, 103 Va. L. Rev. 1611, 1644–50 (2017). ↑
15. . Paul B. Stephan, Anti-Bribery Law, in Is The International Legal Order Unraveling? 338, 339 (David L. Sloss ed., 2022) (discussing negative comity); see also Elizabeth Acorn & Michael O. Allen, Transnational Legal Spillover? A Re-Appraisal of the OECD Anti-Bribery Convention, 68 Int’l Stud. Q., June 2024, at 1, 3 (discussing the failure of OECD countries to enforce foreign anti-bribery laws). ↑
16. . See Kevin E. Davis, Between Impunity and Imperialism: The Regulation of Transnational Bribery 11–16 (2019) (providing the comprehensive critiques of the FCPA regime and describing the impact of the FCPA on the behavior of multinational corporations). ↑
17. . See Johann Graf Lambsdorff, Causes and Consequences of Corruption: What Do We Know from a Cross-Section of Countries?, in Int’l Handbook on the Econ. of Corruption 4, 22–38 (Susan Rose-Ackerman ed., 2006) (discussing the causes and effects of corruption); see also President James Wolfensohn Gives His “Cancer of Corruption” Speech, World Bank Grp. Archive (Oct. 1, 1996), https://timeline.worldbank.org/en/timeline/eventdetail/4f9e2014-604b-4cb1-a771-8e4cda4b59cb [https://perma.cc/T4AR-CCBJ] (highlighting the need for development banks to address corruption). ↑
18. . U.S. Dep’t of Just. Crim. Div. & U.S. Sec. & Exch. Comm’n Enf’t Div., FCPA: A Resource Guide to the U.S. Foreign Corrupt Practices Act 2 (2d ed., 2020) [hereinafter FCPA Resource Guide]; see also Brewster, supra note 14, at 1622–26 (elaborating on the Cold War-era forces that helped stigmatize corrupt conduct exhibited by many American companies at the time). ↑
19. . Brewster, supra note 14, at 1657–58. ↑
20. . Id. at 1618; see also infra subpart III(A). ↑
21. . FCPA Resource Guide, supra note 18, at 3. ↑
22. . Id. ↑
23. . Id. at 4. ↑
24. . For a discussion of the possibility of multiple national prosecutions for the same act of bribery, see Andrew S. Boutros & T. Markus Funk, “Carbon Copy” Prosecutions: A Growing Anticorruption Phenomenon in a Shrinking World, 2012 U. Chi. Legal F. 259, 269–70. ↑
25. . Cf. id. at 270 (“[F]rom an international jurisdictional standpoint, an illegal act committed in one nation could give rise to liability in another nation . . . .”). ↑
26. . E.g., Restatement (Fourth) of Foreign Rels. L. of the U.S. § 402(1)(a) (A.L.I. 2019). ↑
27. . E.g., id. § 402(1)(c). The range of states that can claim jurisdiction expands further if the corrupt actions involve a parent corporation and multiple foreign subsidiaries. In these cases, three or more states can have concurrent jurisdiction over the same activity. ↑
28. . All members of the OECD Anti-Bribery Convention are obligated to adopt and enforce foreign anti-bribery laws. Organisation for Economic Co-operation and Development, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions art. 1, ¶¶ 1–2, art. 5, ¶ 1, Dec. 17, 1997, T.I.A.S. No. 99-215 [hereinafter OECD Anti-Bribery Convention]. Forty-six states have ratified the convention (all thirty-eight OECD states and eight non-OECD members). Fighting foreign bribery, OECD, https://www.oecd.org/en/topics/sub-issues/fighting-foreign-bribery.html [https://perma.cc/P5SH-EFAY]. ↑
29. . See Mark Pieth, International Cooperation to Combat Corruption, in Corruption and the Global Economy 119, 123–24 (Kimberly A. Elliot ed., 1997) (noting increasing pressure from OECD officials for member states to eliminate tax deductions for foreign bribes). ↑
30. . FCPA Resource Guide, supra note 18, at 9. Not all FCPA cases are transnational. The FCPA additionally has an accounting provision, which applies only to public corporations listed on American securities markets, which obligates companies to keep books and records that reasonable detail and to establish internal control provisions sufficient to ensure managerial control over the firm’s assets. Id. at 38. As a result, a firm can be in violation of these accounting provisions without engaging in foreign bribery at all. ↑
31. . 15 U.S.C. § 78dd-2; FCPA Resource Guide, supra note 18, at 10. ↑
32. . 15 U.S.C. § 78dd-1; FCPA Resource Guide, supra note 18, at 9. This includes any firm that is required to file periodic reports to the SEC, which in practice includes over-the-counter securities or securities offered through American Deposit Receipts. See FCPA Resource Guide, supra note 18, at 9. ↑
33. . 15 U.S.C. § 78dd-3(a); FCPA Resource Guide, supra note 18, at 10. ↑
34. . See Michael R. King & Usha R. Mittoo, What Companies Need to Know About International Cross-Listing, 19 J. Applied Corp. Fin., Fall 2007, at 60, 60–62 (2007) (explaining why foreign firms cross-list on American exchanges); Katie Martin & Nikou Asgari, Why Europe’s Stock Markets Are Failing to Challenge the US, Fin. Times (Apr. 24, 2023), https://www.ft.com/
    content/790a5990-1d25-45c4-9267-466a92c52e02 [https://perma.cc/2HPD-HS8X] (discussing current trends in foreign firms’ decisions to list on American exchanges). ↑
35. . U.S.-China Econ. & Sec. Rev. Comm’n, Chinese Companies Listed on U.S. Exchanges 1 (2025), https://www.uscc.gov/sites/default/files/2025-03/Chinese_Companies_
    Listed_on_US_Stock_Exchanges_03_2025.pdf [https://perma.cc/E5QS-MR4A]. ↑
36. . For foreign firms listing on American exchanges, FCPA jurisdiction requires a territorial link to the United States, which can be met if the bribery scheme made use of any interstate commerce within the United States, including “placing a telephone call or sending an e-mail, text message, or fax from, to, or through the United States” or “sending a wire transfer from or to a U.S. bank or otherwise using the U.S. banking system.” FCPA Resource Guide, supra note 18, at 10. ↑
37. . U.K. Ministry of Just., The Bribery Act 2010: Guidance 9 (2012), https://assets.
    publishing.service.gov.uk/media/5d80cfc3ed915d51e9aff85a/bribery-act-2010-guidance.pdf [https://perma.cc/J5HB-WY3A]. ↑
38. . For an analysis of how American firms responded to the additional coverage of the U.K. Bribery Act, see Amanda Sanseverino, The Impact of Foreign Laws on US Firms: Evidence from the U.K. Bribery Act, 29 Rev. Acct. Stud. 3369, 3370–72 (2023). ↑
39. . OECD Anti-Bribery Convention, supra note 28, art. 1, ¶ 1, art. 8, ¶¶ 1–2. For a discussion of the negotiations of the convention, see Kenneth W. Abbott & Duncan Snidal, Values and Interests: International Legalization in the Fight Against Corruption, 31 J. Legal Stud. S141, S167–70 (2002); Daniel K. Tarullo, The Limits of Institutional Design: Implementing the OECD Anti-Bribery Convention, 44 Va. J. Int’l L. 665, 668 (2004); Pieth, supra note 29, at 122–23. ↑
40. . Cf. Tarullo, supra note 39, at 677–80 (describing U.S. efforts to overcome resistance to the OECD Anti-Bribery Convention). ↑
41. . Mark Pieth, who observed the OECD convention’s negotiations, notes that the treaty unambiguously endorsed the American position that it could prosecute foreign firms if “even the slightest of connections” existed to link that activity to American territory. Mark Pieth, Article 4: Jurisdiction, in The OECD Convention on Bribery: A Commentary 267, 276–77 (Mark Pieth, Lucinda A. Low & Peter J. Cullen, eds., 2007). This matches the American enforcement policy of prosecuting foreign issuers so long as there is some connection to interstate commerce (such as a bank transfer, email, or other act). See supra text accompanying note 36. ↑
42. . Article 4, paragraph 1 of the convention states that “[e]ach Party shall take such measures as may be necessary to establish its jurisdiction over the bribery of a foreign public official when the offence is committed in whole or in part in its territory.” OECD Anti-Bribery Convention, supra note 28, art. 4, ¶ 1. ↑
43. . Article 4, paragraph 3 of the convention states that “[w]hen more than one Party has jurisdiction over an alleged offence described in this Convention, the Parties involved shall, at the request of one of them, consult with a view to determining the most appropriate jurisdiction for prosecution.” OECD Anti-Bribery Convention, supra note 28, art. 4, ¶ 3. International law more broadly also does not resolve conflicts regarding enforcement where multiple states have prescriptive and adjudicatory jurisdiction. See Restatement (Fourth) of Foreign Rels. L. of the U.S. § 407 cmt. d and reps note 3 (A.L.I. 2019) (highlighting that customary international law does not have a hierarchy for claims of jurisdiction); Cedric Ryngaert, Jurisdiction in International Law 142–44 (2d ed. 2015) (same). ↑
44. . Mark Pieth, Introduction to The OECD Convention on Bribery: A Commentary 3, 35 (Mark Pieth, Lucinda A. Low & Peter J. Cullen, eds., 2007). A few states and NGO groups are now advocating for an international anticorruption court, that would focus on the supply side and the demand side of corruption. See, e.g., Mark L. Wolf, Richard J. Goldstone & Robert I. Rotberg, Am. Acad. of Arts & Scis., The Progressing Proposal for an International Anti-Corruption Court 1 (2022). ↑
45. . See Pieth, supra note 44, at 271–72, 281 (noting that the OECD requested both “territoriality” and “nationality” principles that could result in overlapping jurisdictions). ↑
46. . See OECD Anti-Bribery Convention, supra note 28, art. 4, ¶ 3 (“When more than one Party has jurisdiction over an alleged offence described in this Convention, the Parties involved shall, at the request of one of them, consult with a view to determining the most appropriate jurisdiction for prosecution.”). ↑
47. . Elizabeth Spahn, Multijurisdictional Bribery Law Enforcement: The OECD Convention, 53 Va. J. Int’l L. 1, 47–48 (2012); Qingxiu Bu, Multijurisdictional Prosecution of Multinational Corporations: Double Jeopardy vis-à-vis Sovereign Rights in the Globalized Anti-Bribery Regime, 60 Int’l Annals of Criminology 269, 270–71 (2022); Frederick T. Davis, International Double Jeopardy: U.S. Prosecutions and the Developing Law in Europe, 31 Am. U. Int’l L. Rev. 57,
    61–62 (2016); Mark Pieth, Negotiating Settlements in a Broader Law Enforcement Context, in Negotiated Settlements in Bribery Cases 19, 23 (Tina Søreide & Abiola Makinwa eds., 2020). Even in the United States, the “dual sovereignty” theory allows separate prosecution between federal and state officials. See Amy Howe, Opinion Analysis: Justices Uphold “Separate Sovereigns” Doctrine, SCOTUSblog (June 17, 2019), https://www.scotusblog.com/2019/06/
    opinion-analysis-justices-uphold-separate-sovereigns-doctrine/ [https://perma.cc/EBM5-AWJF] (analyzing a recent Supreme Court decision upholding the separate sovereigns doctrine). Double jeopardy also does not apply in civil cases, and many FCPA resolutions involve civil, not criminal claims. Rachel Brewster, The Role of the FCPA in Transnational Litigation, Transnat’l Litig. Blog (May 12, 2022), https://tlblog.org/the-role-of-the-fcpa-in-transnational-litigation/ [https://
    perma.cc/3WJZ-GG59]. ↑
48. . Andrew S. Boutros & T. Markus Funk, “Carbon Copy” Prosecutions: A Growing Anticorruption Phenomenon in a Shrinking World, 2012 U. Chi. Legal F. 259, 281–85; see Andrew S. Boutros & T. Markus Funk, Re-Examining “Carbon Copy” Prosecutions: A Look Back and Spring Forward, 85 Def. Couns. J. 1, 1–2, 10 (2018) (describing prevalence of carbon copy prosecutions); Sharon Oded, Multi-Jurisdictional Anti-Corruption Enforcement: Time for a Global Approach, 28 J.L. & Pol’y 510, 521 (2020) (describing carbon copy enforcement strategies). ↑
49. . See Jay Holtmeier, Cross-Border Corruption Enforcement: A Case for Measured Coordination Among Multiple Enforcement Authorities, 84 Fordham L. Rev. 493, 498 (2015) (describing the TSKJ consortium’s bribery in connection with its Bonny Island liquefied natural gas facility contracts in Nigeria); Boutros & Funk, Re-Examining Carbon Copy Prosecutions, supra note 48, at 9, 18 (reporting Nigeria’s $6 million Tidewater settlement in follow-on actions from the TSKJ Bonny Island LNG scheme). ↑
50. . Boutros & Funk, Re-Examining Carbon Copy Prosecutions, supra note 48, at 18. ↑
51. . Id. ↑
52. . Spahn, supra note 47, at 29. ↑
53. . The convention formally entered into force in 1999. Brewster, supra note 14, at 1642. ↑
54. . Brewster, supra note 14, at 1616. The FCPA criminalizes the supply side of bribery—the offer of anything of value to a public official done to obtain or retain business or otherwise gain an unfair advantage. The FCPA does not criminalize the demand side of bribery—the request or acceptance of a bribe by a public official, although the United States has prosecuted foreign public officials for money laundering if the proceeds of bribery enter the American banking system. See United States v. Duperval, 777 F.3d 1324, 1329 (11th Cir. 2015) (upholding conviction of a foreign official for laundering bribe proceeds through U.S. banks). More recently, the United States enacted the Foreign Extortion Prevention Act (FEPA) which gives DOJ prosecutors the authority to pursue foreign government officials who demand bribes. Foreign Corrupt Practices Act, U.S. Dep’t of Just. Crim. Div., https://www.justice.gov/criminal/criminal-fraud/foreign-corrupt-practices-act [https://perma.cc/8EVY-74EC]. ↑
55. . Brewster, supra note 14, at 1642 (noting the Convention contained strongly worded obligations for nations to prohibit foreign bribery by their nationals). ↑
56. . Id. at 1618; see also Stephen J. Choi & Kevin E. Davis, Foreign Affairs and Enforcement of the Foreign Corrupt Practices Act, 11 J. Emp. L. St. 409, 412–13 (2014) (analyzing increasing FCPA enforcement since 2004). ↑
57. . The OECD Convention was signed in December 1997, ratified by all signatories, and entered into force until Feb. 15, 1999. See OECD, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions: Ratification Status as of September 2023 (Sep. 22, 2023), https://web-archive.oecd.org/2023-09-22/159857-wgb-ratification-status.pdf [https://perma.cc/AWG7-EFHH] (providing official deposit and entry-into-force dates for each country). The OECD Convention has now been ratified by all states that have more recently joined the OECD as well as eight non-OECD members. See OECD, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Legal Instrument No. 0293), https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0293#adherents [https://perma.cc/CGH6-4S3B] (listing adherents to the Convention, including newer OECD members and non-OECD parties). ↑
58. . See Tarullo, supra note 39, at 683 (discussing the lack of enforcement other than by American officials); Rachel Brewster & Christine Dryden, Building Multilateral Anticorruption Enforcement: Analogies between International Trade & Anti-Bribery, 57 Va. J. Int’l L. 221, 238-42 (2017) (discussing how the OECD Convention was underenforced by most members in its early years). ↑
59. . The United Kingdom became a robust enforcer of anti-bribery laws and also used it broad extraterritorial jurisdiction after the passage of the U.K. Bribery Act in 2010. See U.K. Ministry of Just., supra note 37, at 8–9. That act was prompted by the BAE corruption scandal discussed infra section I(B)(2). ↑
60. . Brewster, supra note 14, at 1671 (discussing how this jurisdictional hook allows the United States to adopt a competition-neutral enforcement strategy globally); see also Martin & Asgari, supra note 34 (discussing the attraction of U.S. capital markets). ↑
61. . See Spahn, supra note 47, at 28–29 (discussing how French magistrates referred evidence of bribery by French oil company, Elf Aquitaine (Total), to the DOJ, which subsequently prosecuted). ↑
62. . OECD Anti-Bribery Convention, supra note 28, art. 5. The OECD Working Group issues country reports evaluating members’ compliance with the convention. The Phase 3 and Phase 4 reports have focused overwhelmingly on state enforcement. OECD Anti-Bribery Convention and the Country Monitoring Process 2 (2024), https://www.oecd.org/content/dam/
    oecd/en/topics/policy-sub-issues/fighting-foreign-bribery/oecd-anti-bribery-convention-country-monitoring-process.pdf [https://perma.cc/KU5C-M6GW]. Mark Pieth describes the OECD conventions approach as “collective unilateralism” but notes that “[o]utside of the United States, the sanctions are generally lower and efforts of law enforcement agencies are, to say the least, unequal.” Mark Pieth, Introduction to The OECD Convention on Bribery: A Commentary 25, 30 (Mark Pieth, Lucinda A. Low & Nicola Bonucci eds., 2d ed. 2014). ↑
63. . See Elisabeth Acorn & Michael O. Allen, Transnational Legal Spillover? A Reappraisal of the OECD Anti-Bribery Convention, forthcoming Int’l St. Q. (2024) (manuscript on file with the Texas Law Review); Brewster & Dryden, supra note 58, at 238–42 (discussing limited OECD member state enforcement). See also Michael O. Allen, Unbundling the State: Legal Development in an Era of Global, Private Governance, 77 Int’l Org. 754, 755, 764 (2023) (discussing how available substitutes for domestic enforcement can lead to underinvestment in local enforcement capacity). ↑
64. . See Brewster & Dryden, supra note 58, at 240–42 (discussing the various reasons cited in OECD Phase 3 country reports for members’ failure to bring foreign bribery enforcement actions). ↑
65. . Acorn & Allen, supra note 63, at 6; see Brewster & Dryden, supra note 58, at 240–42 (discussing the enforcement of OECD members between 1999 and 2014). ↑
66. . Stephan, supra note 15, at 339, 356 (defining negative comity as circumstances “where [some] states strive mostly to stay out the way of other states’ regulatory efforts” while “[a] handful of states vigorously prosecute bribery of foreign government officials, and the rest acquiesce”). ↑
67. . See id. at 356 (describing the collective action problem). ↑
68. . Id. at 360; see Brewster, supra note 14, at 1663–64 (discussing how the OECD resolved political and economic collective action problems). ↑
69. . See Press Release, U.S. Dep’t of Just., Siemens AG and Three Subsidiaries Plead Guilty to Foreign Corrupt Practices Act Violations and Agree to Pay $450 Million in Combined Criminal Fines (Dec. 15, 2008) [hereinafter Press Release, Siemens AG], https://www.justice.gov/archive/
    opa/pr/2008/December/08-crm-1105.html [https://perma.cc/9DVW-TWSV] (discussing how U.S. and German law enforcement coordinated investigation of Siemens); Brandon L. Garrett, Globalized Corporate Prosecutions, 97 Va. L. Rev. 1775, 1785–86 (2011) (discussing how American authorities took the lead in the investigation of Siemens); Kevin E. Davis, Between Impunity and Imperialism: The Regulation of Transnational Bribery 129–30 (2019) (discussing the details of U.S. and German cooperation in making cases against Siemens officials). ↑
70. . Siri Schubert & T. Christian Miller, At Siemens, Bribery Was Just a Line Item, N.Y. Times (Dec. 20, 2008), https://www.nytimes.com/2008/12/21/business/worldbusiness/21siemens.html [https://perma.cc/68BU-XUGL]. ↑
71. . Press Release, Siemens AG, supra note 69. The DOJ noted that Siemens falsified books and records for a total of $1.36 billion payments. Beyond the $805.5 million in corrupt payments, $554.5 million was paid for unknown purposes and $341 million were paid to business consultants for unknown purposes. ↑
72. . Davis, supra note 69, at 130; Press Release, Siemens AG, supra note 69. ↑
73. . See Garrett, supra note 69, at 1785–86 (noting that the U.S. DOJ and SEC “closely collaborated” with Munich officials). ↑
74. . In addition to police investigations, Siemens hired Debevoise & Plimpton to conduct an internal investigation that found over $1 billion in bribe payments. Siemens paid over $500 million to outside counsel to resolve the matter, though the exact amount received by Debevoise & Plimpton was not disclosed. Garrett, supra note 69, at 1786; Mike Esterl, David Crawford & Nathan Koppel, Siemens Internal Review Hits Hurdles, Wall St. J. (Jan. 23, 2008), https://www.wsj.com/articles/
    SB120103804575607643 [https://perma.cc/7JMQ-GFDW]. ↑
75. . Press Release, Siemens AG, supra note 69. Siemens, as the parent company, had a direct responsibility under the FCPA to enforce accounting practices at its wholly owned or majority owned subsidiaries. Thus it was directly liable for failing to enforce these rules. Davis, supra note 69, at 133. ↑
76. . Press Release, Siemens AG, supra note 69; Garrett, supra note 69, at 1786. ↑
77. . Press Release, Siemens AG, supra note 69. ↑
78. . Garrett, supra note 69, at 1787. ↑
79. . Press Release, Siemens AG, supra note 69. ↑
80. . The Plot Thickens: A Saudi Prince, Some Fighter Jets and More Allegations, The Economist (June 7, 2007), https://www.economist.com/britain/2007/06/07/the-plot-thickens [https://perma.cc/2HEV-6TNU]. ↑
81. . Id.; see Susan Rose-Ackerman & Benjamin Billa, Treaties and National Security, N.Y.U. J. Int’l L. & Pol. 437, 439–40 (2008) (describing the BAE investigation stages); Spahn, supra note 47, at 23–24 (discussing the United Kingdom’s amendment of its anti-bribery legislation based on the OECD Working Group’s peer review process). ↑
82. . Rose-Ackerman & Billa, supra note 81, 440–41; Spahn, supra note 47, at 23. ↑
83. . Rose-Ackerman & Billa, supra note 81, 440–41; Spahn, supra note 47, at 25. The OECD Working Group also expressed significant skepticism about the British decision to drop the prosecution and whether it was a breach of the OECD Convention. Spahn, supra note 47, at 23–24. ↑
84. . Nelson D. Schwartz & Lowell Bergman, Payload: Taking Aim at Corporate Bribery, N.Y. Times (Nov. 25, 2007), https://www.nytimes.com/2007/11/25/business/25bae.html [https://perma
    .cc/8SNX-3AG8]. ↑
85. . Christopher Drew & Nicola Clark, BAE Settles Corruption Charges, N.Y. Times (Feb. 6, 2010), https://www.nytimes.com/2010/02/06/business/global/06bribe.html [https://perma.cc/
    FVP3-BMFS]. ↑
86. . Press Release, U.S. Dep’t of Just., BAE Systems PLC Pleads Guilty and Ordered to Pay $400 Million Criminal Fine (March 1, 2010), https://www.justice.gov/archives/opa/pr/bae-systems-plc-pleads-guilty-and-ordered-pay-400-million-criminal-fine [https://perma.cc/4EQJ-H6E4]. ↑
87. . Id. ↑
88. . Drew & Clark, supra note 85. ↑
89. . But see Spahn, supra note 47, at 24–25 (describing this as cooperative). ↑
90. . Schwartz & Bergman, supra note 84. ↑
91. . Alice S. Fisher, Assistant Att’y Gen., U.S. Dep’t of Just., Remarks of Alice S. Fisher, Assistant Att’y Gen., U.S. Dep’t of Just., at the American Bar Association National Institute on the Foreign Corrupt Practices Act 2–3 (Oct. 16, 2006), https://www.justice.gov/sites/default/files/
    criminal-fraud/legacy/2010/04/11/10-16-06AAGFCPASpeech.pdf [https://perma.cc/9GQR-LRUK]. ↑
92. . The DOJ also refused to defer to the Norwegian prosecution of its own oil company, Statoil, for bribing Iranian officials. The Norwegian government had already fined Statoil $3 million. Id. at 4. Nonetheless, the DOJ brought its own prosecution, based on Statoil’s listing on American exchanges. Id. at 3. Statoil entered into a deferred prosecution agreement, which required it to pay an additional $10.5 million and hire an independent compliance consultant. Id. at 3–4; Press Release, U.S. Dep’t of Just., Statoil ASA Satisfies Obligations Under Deferred Prosecution Agreement and Foreign Bribery Charges Are Dismissed (Nov. 19, 2009), https://www.justice.gov/
    archives/opa/pr/statoil-asa-satisfies-obligations-under-deferred-prosecution-agreement-and-foreign-bribery [https://perma.cc/LWQ5-TXHQ]. ↑
93. . See Davis, supra note 69, at 196 (describing one country imposing its views on how to regulate as imperialistic); Charles F. Smith & Brittany D. Parling, “American Imperialism”: A Practitioner’s Experience with Extraterritorial Enforcement of the FCPA, 2012 U. Chi. Legal F. 237, 249 (explaining how anti-bribery lawyers are often asked why the United States claims a right to regulate “the moral or business conduct of non-US companies”). ↑
94. . See Davis, supra note 69, at 43 (discussing the OECD Convention’s focus on international bribery and encouragement of foreign government cooperation); see also Brewster, supra note 14, at 1659–60, 1664 (discussing how the OECD Convention endorses broad extraterritorial jurisdiction). Even Davis, who provides a comprehensive critique of the OECD system, notes that “a successful regime will have to retain some elements of imperialism.” Davis, supra note 69, at 243. ↑
95. . As the FCPA and other foreign laws include purely accounting-based provisions aimed at preventing bribery, global settlements can include resolutions that only involve alleged books and records violations. ↑
96. . For this Article, I assembled a database of global settlements and the distributions of their financial penalties from DOJ and SEC statements and Stanford Law School’s FCPA Clearinghouse. Amounts credited to foreign government payments were collected from DOJ and SEC press releases or other independent reporting. Amounts are rounded. ↑
97. . Unless otherwise noted, the data for this chart comes from Stanford Law School’s FCPA Clearinghouse. Stan. L. Sch. Foreign Corrupt Pracs. Act Clearinghouse: Enf’t Action Dataset, https://fcpa.stanford.edu/enforcement-actions.html [https://perma.cc/3UZ4-DKGU]. ↑
98. . The “U.S. Enforcement Penalty” is the entire amount of the DOJ and SEC FCPA penalty before any crediting to other American agencies or foreign governments. It does not include other fines from U.S. or state government entities for fines related to the conduct but not based on the FCPA (e.g., failure to maintain anti-money laundering standards). It is also not the total of all foreign and domestic penalties. Finally, it does not include judgments from private suits related to the conduct (e.g., investor class actions or unfair competition suits). The total “enforcement penalty” and the “global distribution of penalty” do not always total to the same figure because, in some cases, the DOJ or SEC forgives or does not completely credit the foreign penalty. The differences for each of the relevant cases is detailed in the footnotes. ↑
99. . The global distribution penalty is the amount collected by each government after accounting for crediting to other agencies or foreign governments. ↑
100. . The official penalty is $3,906,300,000 but the total Goldman Sachs Group Inc. actually paid $2,900,300,000. The difference is due to the SEC crediting a disgorgement to Malaysia and a portion of a separate penalty issued by Hong Kong. See Case Information: United States of America v. The Goldman Sachs Group, Inc., Stan. L. Sch. Foreign Corrupt Pracs. Act Clearinghouse: Enf’t Action Dataset, https://fcpa.stanford.edu/enforcement-action.html?id
     =821 [https://perma.cc/6PEC-BZG8] [hereinafter FCPA Dataset: Goldman Sachs]. ↑
101. . Id. ↑
102. . Id.; Alun John, Hong Kong fines Goldman Sachs record $350 million over 1MDB failings, Reuters (Oct. 22, 2020), https://www.reuters.com/world/asia-pacific/hong-kong-fines-goldman-sachs-record-350-million-over-1mdb-failings-2020-10-22/ [https://perma.cc/KG4S-TZN2]. The U.S. government credited Goldman Sachs for only $100 million of the $350 million Hong Kong penalty, see FCPA Dataset: Goldman Sachs supra note 100. ↑
103. . The official penalty is $2,639,900,000, but the amount that Petrobras was actually required to pay was $853,200,000, which is reflected in the combined total of the global distribution amounts. This reduced amount resulted from the SEC forgiving $1,786,720,000 of the penalty. Case Information: In Re Petroleo Brasileiro S.A. – Petrobras, Stan. L. Sch. Foreign Corrupt Pracs. Act Clearinghouse: Enf’t Action Dataset, https://fcpa.stanford.edu/enforcement-action
     .html?id=716 [https://perma.cc/RZL7-H49U]. ↑
104. . The official penalty is $2.6 billion but total amount Odebrecht was actually required to pay was $2,433,000,000 because the United States later reduced the amount it would collect by $167,000,000. The global distribution adds up to this total. Case Information: United States of America v. Odebrecht S.A., Foreign Corrupt Prac. Act Clearinghouse, https://fcpa.stanford
     .edu/enforcement-action.html?id=635 [https://perma.cc/4PDS-JVK6]; see Press Release, U.S.
     ↑
105. Dep’t of Just., Odebrecht and Braskem Plead Guilty and Agree to Pay at Least $3.5 Billion in Global Penalties to Resolve Largest Foreign Bribery Case in History (Dec. 21, 2016), https://www
     .justice.gov/archives/opa/pr/odebrecht-and-braskem-plead-guilty-and-agree-pay-least-35-billion-global-penalties-resolve [https://perma.cc/C3UD-4BSL] [hereinafter Press Release, Odebrecht and Braskem] (explaining that 10% of the total $2.6 billion fine went to Switzerland, 10% to the United States, and 80% to Brazil).

     . Case Information: United States of America v. Airbus SE, Stan. L. Sch. Foreign Corrupt Pracs. Act Clearinghouse: Enf’t Action Dataset, https://fcpa.stanford.edu/
     enforcement-action.html?id=787 [https://perma.cc/6DBN-H7GH]. ↑

106. . Press Release, U.S. Dep’t of Just., Airbus Agrees to Pay over $3.9 Billion in Global Penalties to Resolve Foreign Bribery and ITAR Case (Jan. 31, 2020), https://www.justice.gov/
     archives/opa/pr/airbus-agrees-pay-over-39-billion-global-penalties-resolve-foreign-bribery-and-itar-case [https://perma.cc/NLP7-DF2M] [hereinafter Press Release, Airbus]. ↑
107. . The official penalty is $1,282,600,000, but Braskem was only required to pay $957,600,000 of the penalty amount because $325,000,000 was forgiven by the DOJ. The global distribution amounts add up to this total. Case Information: United States of America v. Braskem S.A., Stan. L. Sch. Foreign Corrupt Pracs. Act Clearinghouse: Enf’t Action Dataset, https://fcpa.stanford.edu/enforcement-action.html?id=647 [https://perma.cc/GLV7-RK27]. ↑
108. . Press Release, U.S. Sec. & Exch. Comm’n, SEC Charges Multinational Telecommunications Company with FCPA Violations (Dec. 6, 2019), https://www.sec.gov/
     newsroom/press-releases/2019-254 [https://perma.cc/VCQ4-CSCB]. ↑
109. . The official penalty is $1,005,600,000, but Telia was only required to pay $965,600,000 because the SEC credited $40,000,000 of its penalty to the DOJ to satisfy part of the latter’s penalty. Case Information: United States of America v. Telia Company AB, et al., Stan. L. Sch. Foreign Corrupt Pracs. Act Clearinghouse: Enf’t Action Dataset, https://fcpa.stanford.edu/
     enforcement-action.html?id=668 [https://perma.cc/HBS2-TXU8]; see Press Release, U.S. Atty’s Off. S.D.N.Y., Global Telecommunications Company and Its Subsidiary to Pay More than $965 Million in Penalties in Massive Bribery Scheme Involving Uzbek Official (Sep. 21, 2017), https://www.justice.gov/usao-sdny/pr/global-telecommunications-company-and-its-subsidiary-pay-more-965-million-penalties [https://perma.cc/HPJ6-KK77] (describing the $965 million total criminal and regulatory penalties paid by Telia). ↑
110. . In the Matter of Mobile Telesystems PJSC, Stan. L. Sch. Foreign Corrupt Pracs. Act Clearinghouse: Enf’t Action Dataset, https://fcpa.stanford.edu/enforcement-action.html?id
     =742 [https://perma.cc/62SD-Y3JJ]. ↑
111. . The official penalty was $835 million but Vimpel was only required to pay $795,000,000 ↑
112. because the SEC forgave $40,000,000 of its penalty. Case Information: United States of America v. VimpelCom Ltd., et al., Stan. L. Sch. Foreign Corrupt Pracs. Act Clearinghouse: Enf’t Action Dataset, https://fcpa.stanford.edu/enforcement-action.html?id=597 [https://perma
     .cc/9D3B-RSBS].

     . This case was a prototype global settlement. The U.S. government limited its penalty against Siemens to $800 million because Siemens owed German authorities an additional $800 $167,000,000. The global distribution adds up to this total. Case Information: United States of America v. Odebrecht S.A., Foreign Corrupt Prac. Act Clearinghouse, https://fcpa.stanford
     .edu/enforcement-action.html?id=635 [https://perma.cc/4PDS-JVK6]; see Press Release, U.S. ↑

113. . The Obama Administration began experimenting with global settlements in 2016. The practice was institutionalized in the Anti-Piling On memorandum in 2018. See discussion infra subpart II(B). ↑
114. . There are some differences between the total penalty number and the global distribution totals. For details on the differences between the numbers, please see the footnotes in Figure 1, supra notes 100–11. ↑
115. . See supra notes 100–02. ↑
116. . See supra note 103. ↑
117. . See supra note 104. ↑
118. . See supra notes 105–06. ↑
119. . See supra note 107. ↑
120. . See supra note 109. ↑
121. . See supra note 111. ↑
122. . Case Information: United States of America v. Glencore International A.G., Stan. L. Sch. Foreign Corrupt Pracs. Act Clearinghouse: Enf’t Action Dataset, https://fcpa.stanford
     .edu/enforcement-action.html?id=862 [https://perma.cc/BV28-26YB]; U.S. Dep’t of Just., Plea Agreement: United States v. Glencore International A.G. (May 24, 2022), https://www
     .justice.gov/usao-sdny/press-release/file/1508166/dl [https://perma.cc/JR3Y-WHUM]. ↑
123. . Case Information: United States of America v. Gunvor S.A., Stan. L. Sch. Foreign Corrupt Pracs. Act Clearinghouse: Enf’t Action Dataset, https://fcpa.stanford.edu/
     enforcement-action.html?id=914 [https://perma.cc/8DJU-HLZ8]. ↑
124. . Case Information: United States of America v. Societe Generale S.A., Stan. L. Sch. Foreign Corrupt Pracs. Act Clearinghouse: Enf’t Action Dataset, https://fcpa.stanford
     .edu/enforcement-action.html?id=914 [https://perma.cc/C6C4-SEM7]. ↑
125. . See infra subpart II(B). ↑
126. . Memorandum from Rod Rosenstein, Deputy Att’y Gen., U.S. Dep’t of Just., on Policy on Coordination of Corp. Resolution Penalties to Heads of Dep’t Components, U.S. Att’ys (May 9, 2018) [hereinafter Rosenstein Memo]. “Piling On” is, of course, a sports metaphor. American football rules prohibit players from piling on top of an opposing player if the player is already down. But at least lawyers are finally using sports metaphors based on something other than baseball. ↑
127. . Id. at 1 (“The Department should also endeavor, as appropriate, to coordinate with and consider the amount of fines, penalties, and/or forfeiture paid to other federal, state, local, or foreign enforcement authorities that are seeking to resolve a case with a company for the same misconduct.”); Rod Rosenstein, Deputy Att’y Gen., U.S. Dep’t of Just., Remarks to the New York City Bar White Collar Crime Institute (May 9, 2018) [hereinafter Rosenstein, Remarks]. ↑
128. . Cf. Rosenstein, Remarks, supra note 127 (noting that foreign authorities wish to collaborate with the United States). ↑
129. . See Jay Holtmeier et al., New DOJ Policy to Prevent “Piling On”, WilmerHale (May 30, 2018), https://www.wilmerhale.com/en/insights/client-alerts/2018-05-30-new-doj-policy-to-prevent-piling-on [https://perma.cc/YKJ7-4KQQ] (describing the risks of multiple penalties imposed on firms by different regulators); Brad Karp, The DOJ’s New “Piling On” Policy, Harv. L. Sch. F. on Corp. Governance (May 24, 2018), https://corpgov.law.harvard.edu/2018/
     05/24/the-dojs-new-piling-on-policy/ [https://perma.cc/HH2K-YVZV] (discussing how this new policy addressed concerns about redundant penalties). ↑
130. . See Jonathan S. Abernethy, S. Gale Dick, Lara Kroop Delamarre & Christian Everdell, The Department of Justice’s New ‘Piling-On’ Policy, Crim. L. & Bus. Crime Newsletter (Int’l Bar Ass’n, London), Oct. 2018, at 1 (describing how the DOJ formalized what had previously been the practice in anti-bribery investigations). ↑
131. . See FCPA Resource Guide, supra note 30, at 71. ↑
132. . Press Release, U.S. Dep’t of Just., Keppel Offshore & Marine Ltd. and U.S. Based Subsidiary Agree to Pay $422 Million in Global Penalties to Resolve Foreign Bribery Case
     (Dec. 22, 2017), https://www.justice.gov/archives/opa/pr/keppel-offshore-marine-ltd-and-us-based-subsidiary-agree-pay-422-million-global-penalties [https://perma.cc/Q3WX-AJGW] [hereinafter Press Release, KOM]. ↑
133. . See id. (explaining that KOM agreed with the United States, Brazil, and Singapore to pay a combined amount of $422 million); see also Abernethy, supra note 130, at 3 (noting that KOM was credited the amount that it paid to Brazilian and Singaporean authorities). ↑
134. . Press Release, KOM, supra note 132; Abernethy, supra note 130, at 3. ↑
135. . Press Release, KOM, supra note 132. ↑
136. . Holtmeier, supra note 129. Thanks to Jay Holtmeier for highlighting the benefits to the DOJ and DOJ lawyers of publishing the higher figure. For a discussion of the revolving door between firms and the DOJ, particularly attorneys with FCPA experience, see Rachel Brewster & Samuel W. Buell, The Market for Global Anticorruption Enforcement, 80 L. & Cont. Prob., no. 1, 2017, at 193, 206, 210. ↑
137. . Abernethy, supra note 130, at 2–3. ↑
138. . Rosenstein, supra note 127. ↑
139. . Press Release, U.S. Dep’t of Just., Glencore Entered Guilty Pleas to Foreign Bribery and Market Manipulation Schemes (May 24, 2022), https://www.justice.gov/archives/opa/pr/
     glencore-entered-guilty-pleas-foreign-bribery-and-market-manipulation-schemes [https://perma
     .cc/KY3N-2RQF]. ↑
140. . Press Release, U.K. Serious Fraud Off., Glencore to pay £280 million for ‘highly corrosive’ and ‘endemic’ corruption (Nov. 29, 2024), https://www.gov.uk/sfo-cases/glencore-group-of-companies [https://perma.cc/PU76-3AXN]; see also Press Release, U.K. Serious Fraud Off., Glencore to Pay £280 Million for ‘Highly Corrosive’ and ‘Endemic’ Corruption (Nov. 3, 2022), https://service.betterregulation.com/document/613026 [https://perma.cc/W74L-M5J6] (equating £280 million to over 400 million USD). ↑
141. . Press Release, Odebrecht and Braskem, supra note 104. ↑
142. . See Kejal Vyas, Colombian Prosecutors to Charge 60 People with Graft Tied to Odebrecht Building Scandal, Wall St. J. (Aug. 17, 2023), https://www.wsj.com/world/americas/
     colombian-prosecutors-to-charge-60-people-with-graft-tied-to-odebrecht-building-scandal-54cf4909 [https://perma.cc/34HZ-FKDJ] (discussing Colombia’s suit against Odebrecht and criminal charges against individuals). ↑
143. . See infra subpart III(A). ↑
144. . See infra section III(A)(1). ↑
145. . See infra section III(A)(2). ↑
146. . See infra section III(B)(1). ↑
147. . See infra section III(B)(3). ↑
148. . See infra section III(B)(3). ↑
149. . See infra section III(B)(4). ↑
150. . See, e.g., Mark Pieth, OECD Anti-Corruption Initiative, in Elgar Concise Encyclopedia of Corruption Law, 346, 347 (Mark Pieth & Tina Søreide eds. 2023) [hereinafter Pieth, OECD Anti-Corruption Initiative]. Elaborating on this phenomenon, Mark Pieth notes:

     [T]he US-driven approach never really had sustainable development in the [Global] South in mind . . . . For example, in a large-scale corruption scandal pushing Mozambique over the edge of bankruptcy, the US Department of Justice collected fines and confiscated illicit earnings in the hundreds of millions of USD. However, the US treasury profited from these payments rather than the victim state. ↑

151. . See infra section III(B)(4). ↑
152. . Press Release, Odebrecht and Braskem, supra note 104; Press Release, U.S. Dep’t of Just., Petróleo Brasileiro S.A. – Petrobras Agrees to Pay More Than $850 Million for FCPA Violations (Sep. 27, 2018) [hereinafter Press Release, Petróleo], https://www.justice.gov/archives/opa/pr/petr-leo-brasileiro-sa-petrobras-agrees-pay-more-850-million-fcpa-violations [https://perma.cc/NDR4-S7M7]. ↑
153. . Alexandra Stevenson & Vinod Sreeharsha, Secret Unit Helped Brazilian Company Bribe Government Officials, N.Y. Times (Dec. 12, 2016), https://www.nytimes.com/2016/12/21/
     business/dealbook/odebrecht-brazil-company-bribe-kickback-braskem.html [https://perma.cc/
     WC2E-DVBT]; see Press Release, Odebrecht and Braskem, supra note 104 (confirming Braskem was a subsidiary of Odebrecht and that only the United States, Brazil, and Switzerland were to receive settlement payments); A&O Shearman, Odebrecht And Braskem Shatter FCPA Settlement Records By Agreeing To Resolve Enforcement Action For $3.5 Billion For Role In Petrobras Scandal (Jan. 2, 2017), https://www.lit-wc.aoshearman.com/odebrecht-and-braskem-shatter-fcpa-settlement-rec [https://perma.cc/SKE5-L5US] (“Odebrecht and its co-conspirators allegedly paid approximately $788 million in bribes in . . . twelve countries, including Angola, Argentina, Brazil, Colombia, the Dominican Republic, Ecuador, Guatemala, Mexico, Mozambique, Panama, Peru, and Venezuela.”). ↑
154. . OECD Anti-Bribery Convention, supra note 28, art. 5. ↑
155. . In the most recent Transparency International report on the enforcement of foreign anti-bribery laws, only two states, the United States and Switzerland are listed as active enforcers, with the United States playing the more dominant role. Gillian Dell & Andrew McDevitt, Transparency Int’l, Exporting Corruption 2022: Assessing Enforcement of the OECD Anti-Bribery Convention 10 (2022). See, e.g., Brewster & Dryden, supra note 58, at 239 (“[M]ost states have not taken the next step of enforcing [the OECD Convention] . . . . [O]nly four states qualify as active enforcers: the U.S., Germany, the U.K., and Switzerland.”); Acorn & Allen, supra note 63, at 14 n.7 (“In 2015 [the active enforcer] countries are: Germany, UK, Italy, and Switzerland. In 2016 they are: Germany, UK, Italy, Switzerland, and Israel.”). ↑
156. . For a discussion of countries’ reluctance to enforce foreign anti-bribery norms, see Tarullo, supra note 39, at 687–90. ↑
157. . See Sarah C. Kaczmarek & Abraham L. Newman, The Long Arm of the Law: Extraterritoriality and the National Implementation of Foreign Bribery Legislation, 65 Int’l Org. 745, 760 (2011) (“The findings strongly support the extraterritorial spillover hypothesis as U.S. enforcement has a positive and statistically significant association with a country’s likelihood of enforcing their own national laws.”). ↑
158. . Acorn & Allen, supra note 63, at 22. ↑
159. . Id. at 19–20. ↑
160. . See supra Part I. ↑
161. . Garrett, supra note 69, at 1788–89; see also Jennifer Arlen & Samuel W. Buell, The Law of Corporate Investigations and the Global Expansion of Corporate Criminal Enforcement, 93 S. Cal. L. Rev. 697, 703–04 (2020) (discussing the U.S. corporate criminal model and its possible application to foreign systems given differences underlying laws on evidence collection). ↑
162. . Garrett, supra note 69, at 1846. ↑
163. . Id. at 1791–93. ↑
164. . Id. at 1778, 1792. ↑
165. . Id.; Jennifer Arlen, Prosecuting Beyond the Rule of Law: Corporate Mandates Imposed Through Deferred Prosecution Agreements, 8 J. Leg. Analysis 191, 197 (2016). ↑
166. . Davis, supra note 69, at 133–35 (discussing the FCPA’s direct liability for accounting standards versus its vicarious liability for acts of bribery). ↑
167. . See id. at 134 (discussing differing views between nations on when organizations should be vicariously liable for their employees’ actions). ↑
168. . Arlen & Buell, supra note 161, at 710; Peter Yeoh, The UK Bribery Act 2010: Contents and Implications, 19 J. Fin. Crime 37, 43 (2012). ↑
169. . Yeoh, supra note 168, at 43; see Lawrence J. Trautman & Kara Altenbaumer-Price, Lawyers, Guns, and Money: The Bribery Problem and the U.K. Bribery Act, 47 The Int’l Law. 481, 497 (2013) (discussing strict liability regime for a company’s failure to prevent bribery). ↑
170. . See Yeoh, supra note 168, at 43–44 (discussing the adequate procedures defense). While the adequate procedures defense is similar to the American credit for an effective compliance program, the U.S. system only allows leniency, not a legal defense. ↑
171. . Garrett, supra note 69, at 1791–93, 1847. ↑
172. . Id. at 1791–93. ↑
173. . Id. at 1791, 1793. ↑
174. . See John Gleeson, Judicial Scrutiny of DPA and NPAs, in The Guide to Monitorships 225, 225 (Anthony S. Barkow, Neil M. Barofsky & Thomas J. Perrelli eds., 2019) (discussing how judicial review in these cases is limited to cases of clear government misconduct); see also United States v. Fokker Servs. B.V., 818 F.3d 733, 738 (D.C. Cir. 2016) (holding that courts could not review federal prosecutors’ decision to enter into a DPA). ↑
175. . Elizabeth Acorn, Behind the SNC-Lavalin Scandal: The Transnational Diffusion of Corporate Diversion, 54 Can. J. Pol. Sci. 892, 896 (2021). ↑
176. . Arlen, supra note 165, at 198. ↑
177. . Id.; see Garrett, supra note 69, at 1786–87 (describing Siemens pleading guilty only to violating FCPA accounting requirements). ↑
178. . Arlen, supra note 165, at 198–99; Acorn, supra note 175, at 896–97 (2021). ↑
179. . Arlen, supra note 165, at 199–200. ↑
180. . Brandon L. Garrett, Structural Reform Prosecution, 93 Va. L. Rev. 853, 897–98 (2007); Arlen, supra note 165, at 199. ↑
181. . For a discussion of how the threat of DPAs and compliance programs have altered corporate governance, see Jennifer Arlen & Marcel Kahan, Corporate Governance Regulation through Nonprosecution, 84 U. Chi. L. Rev. 323, 335–38 (2017) (noting the different requirements that can be imposed on corporations through DPAs); Sean J. Griffith, Corporate Governance in an Era of Compliance, 57 Wm. & Mary L. Rev. 2075, 2107–10 (2015) (explaining how corporate fear of noncompliance implicitly forces firms to change their business practices). ↑
182. . See Garrett, supra note 69, at 1841–43 (noting international tensions due to American prosecution of BAE); Smith & Parling, supra note 93, at 250–51 (discussing negative foreign media coverage of American prosecution). ↑
183. . The French Resolution: How the American Takeover of a French National Champion Became Intertwined in a Corruption Investigation, The Economist (Jan. 17, 2019) [hereinafter French Resolution], https://www.economist.com/business/2019/01/17/how-the-american-takeover-of-a-french-national-champion-became-intertwined-in-a-corruption-investigation [https://perma.cc/4MG4-WT78]. In relevant part, the Economist article reports:

     Over the past decade, American legal and regulatory authorities have subjected scores of large foreign companies to extraterritorial actions. Paying large fines, which can exceed $1bn, has often been the only way finally to settle such accusations of serious misconduct—typically, corruption or breaching sanctions—outside America. As a result, many bosses and executives are quietly paranoid about the long arm of American sheriffs. ↑

184. . America’s Legal Forays Against Foreign Firms Vex Other Countries, The Economist (Jan. 19, 2019), https://www.economist.com/business/2019/01/19/americas-legal-forays-against-foreign-firms-vex-other-countries [https://perma.cc/P927-6ALG]. ↑
185. . See id. (reporting that European government and business leaders are “peeved at having to heed American laws” and increasingly believe FCPA charges are “instrumentalised to promote [U.S.] economic interests”); Brewster & Buell, supra note 136, at 204 (“There are some abroad, especially in Europe, who believe that the United States may be using global corporate enforcement, especially the FCPA, as a means of assisting U.S. firms in the competition for dominance among multi-nations.”). ↑
186. . French Resolution, supra note 183; Press Release, U.S. Dep’t of Just., Alstom Pleads Guilty and Agrees to Pay $772 Million Criminal Penalty to Resolve Foreign Bribery Charges
     (Dec. 22, 2014) [hereinafter Press Release, Alstom Pleads Guilty], https://www.justice.gov/
     archives/opa/pr/alstom-pleads-guilty-and-agrees-pay-772-million-criminal-penalty-resolve-foreign-bribery [https://perma.cc/C2T5-QAYV]. ↑
187. . French Resolution, supra note 183 (noting Alstom’s lack of cooperation even as arrests occurred); see also Press Release, Alstom Pleads Guilty, supra note 186 (noting that Alstom had refused to cooperate in the DOJ’s investigation). ↑
188. . French Resolution, supra note 183 (noting that DOJ officials linked Alstom’s lack of cooperation to the severity of its punishment, and that Alstom investors feared a $1 billion fine). ↑
189. . Id. ↑
190. . Id. ↑
191. . Id. (“GE had an edge over non-American firms vying to buy Alstom’s assets, such as Siemens of Germany and Mitsubishi of Japan, insofar as their legal departments may have been less well-versed in negotiating American legal settlements.”); see also Chloé Aeberhardt & Marie-Béatrice Baudet, Lobbying, Corruption, Pressions Américaines . . . Les Zones d’Ombre de l’Affaire Alstom [Lobbying, Corruption, American Pressure . . . The Grey Areas of the Alstom Case], Le Monde (Jan. 16, 2019), https://www.lemonde.fr/economie/article/2019/01/15/lobbying-corruption-pressions-americaines-les-zones-d-ombre-de-l-affaire-alstom_5409260_3234.html [https://perma.cc/G28G-Q7QY] (discussing how Siemens’ uncertainty over the FCPA weakened its bidding position). ↑
192. . Press Release, Alstom Pleads Guilty, supra note 186; French Resolution, supra note 183 (noting that the sale to G.E. was announced in April 2014 and the shareholder approval and the DOJ settlement occurred in December 2014). ↑
193. . Juliette Lelieur, France’s ‘Sapin II’ law, in Elgar Concise Encyclopedia of Corruption Law 228, 228 (Mark Pieth & Tina Søreide eds. 2023) (describing the Alstom decision and fine as sending “shock waves through France”). ↑
194. . French Resolution, supra note 183. ↑
195. . See Aeberhardt & Baudet, supra note 191 (“Le sentiment que la cession d’Alstom a été une vaste partie de poker menteur est partagé à gauche comme à droite . . . .” [“The feeling that the sale of Alstom was a vast game of lying poker is shared on both the left and the right . . . .”]). ↑
196. . Les dessous de la vente d’Alstom à General Electric, France Inter (Sep. 11, 2015) (“The practice of ‘Deals of Justice’ by the American authorities leaves French companies very helpless, and raises very serious questions. These ‘deals of justice’ result in potentially serious economic harm. We cannot exclude the risk of these procedures being used to weaken a company before takeover . . . .”). ↑
197. . See, e.g., French Resolution, supra note 183 (discussing the allegations). ↑
198. . Id. (“Questioned by parliament in 2015, the then economy minister, Emmanuel Macron, said it had been “his heartfelt belief” that pressure from the DOJ had weighed on Mr. Kron. ‘Personally, I was myself convinced of the causal link between the investigation and Mr. Kron’s decision [to sell to G.E.], but we have no proof,’ he said.”). ↑
199. . Derrière la vente controversée d’Alstom à General Electric, un “deal” du PDG français avec la justice américaine ? [Behind the controversial sale of Alstom to General Electric: a “deal” between the French CEO and the American justice system?], France Info: Affaires sensibles (Oct. 25 2012), https://www.franceinfo.fr/economie/entreprises/alstom/video-affaires-sensibles-derriere-la-vente-controversee-d-alstom-a-general-electric-un-deal-du-pdg-francais-avec-la-justice-americaine_4815063.html [https://perma.cc/HUP7-3AB3] (“[Minister] Arnaud Montebourg . . . en est convaincu: ‘[Kron] a échangé la vente d’Alstom contre son immunité personnelle. Quand vous vendez votre pays, parce que Alstom, c’est un morceau de la France, pour vous sauver vous, vous êtes un traître . . . .’” [“[minister] Arnaud Montebourg . . . is convinced: ‘[Kron] traded the sale of Alstom for his personal immunity. When you sell your country, because Alstom is a piece of France, to save yourself, you’re a traitor . . . .’”]). ↑
200. . 1 Commission d’enquête chargée d’examiner les décisions de l’État en matière de politique industrielle, au regard des fusions d’entreprises intervenues récemment, notamment dans les cas d’Alstom, d’Alcatel et de STX, ainsi que les moyens susceptibles de protéger nos fleurons industriels nationaux dans un contexte commercial mondialisé, Assemblée Nationale Rapport No. 897 rect. [Nat’l Assembly Rep. No. 897 rev.], at 34 (2018) (Fr.) (finding that “[a]ucun élément factuel ne permet néanmoins de corroborer la théorie selon laquelle General Electric aurait instrumentalisé les procédures pour corruption engagées contre Alstom” [“[t]here is no factual evidence to support the theory that General Electric used the corruption proceedings against Alstom as a tool”]). ↑
201. . Id. at 35. (“Alstom a été fragilisée financièrement par ces poursuites qui entachaient sa réputation et qui la soumettaient à un risque d’amende important. La perspective d’une amende qui aurait pu approcher le milliard de dollars exerçait effectivement une forme de pression sur Alstom, dont le point faible était alors la trésorerie.” [“Alstom was financially weakened by these proceedings, which tarnished its reputation and exposed it to the risk of a substantial fine. The prospect of a fine that could have approached one billion dollars effectively exerted a form of pressure on Alstom, whose weak point at the time was its cash position.”]). ↑
202. . Hartmut Berghoff, Case Study: The Siemens Cases of the 2000s, in Elgar Concise Encyclopedia of Corruption Law 96, 98 (Mark Pieth & Tina Søreide eds., 2023). ↑
203. . Garrett, supra note 69, at 1787. ↑
204. . Monitors are installed, in part, to ensure firms follow through on their promised remediation efforts. See Veronica Root, The Monitor-“Client” Relationship, 100 Va. L. Rev. 523, 531–33 (2014) (discussing the role of monitors in corporate compliance). Monitorship can involve determining the root cause of the misconduct and recommending governance changes. Id. at 531. ↑
205. . Arlen & Buell, supra note 161, at 709–13 (discussing the expansion of the DPA model to other states and analyzing the limitations of the model given differences in national law on evidence collection); see also Frederick T. Davis, Judicial Review of Deferred Prosecution Agreements: A Comparative Study, 60 Colum. J. Transnat’l L. 751, 754 (2022) [hereinafter Davis, Judicial Review] (discussing DPA-like models in other countries and noting certain differences from the American model). ↑
206. . See Yeoh, supra note 169, at 43, 45 (discussing the impact of the U.K. Bribery Act of 2010). ↑
207. . See Elizabeth Acorn, Behind the SNC-Lavalin Scandal: The Transnational Diffusion of Corporate Diversion, 54 Can. J. Pol. Sci. 892, 893–94 (2021) (discussing how Canada’s 2018 reforms avoided drawn-out criminal proceedings). ↑
208. . See Davis, Judicial Review of Deferred Prosecution Agreements, supra note 205, at 799–800, 811, 816 (providing French, Singapore, and Brazil mechanism examples). The diffusion of the DPA/NPA style model for resolving bribery charges is controversial. Some American academics, such as Jennifer Arlen, contend that the government wields too much bargaining power in these agreements. See Arlen, supra note 165, at 203 (contending that prosecutorial discretion in using D/NPAs to create new corporate duties raises significant rule of law concerns). However, other academic and civil society advocates argue that these non-trial resolutions offer excessive leniency for firms. See, e.g., Tina Søreide & Kasper Vagle, Settlements in Corporate Bribery Cases: An Illusion of Choice?, 53 Eur. J.L. & Econ. 261, 282 (2022) (arguing that these agreements are too lenient to the firm and provides society with less information on the crime); Max Heywood, Juanita Olaya, Andrew Feinstein & Mike Davis, CSO Letter to OECD on Principles for the Use of Non-Trial Resolutions in Foreign Bribery Cases, UNCA Civ. Soc’y Coal. (Dec. 6, 2018), https://uncaccoalition.org/cso-letter-to-oecd-on-principles-for-the-use-of-non-trial-resolutions-in-foreign-bribery-cases/ [https://perma.cc/Y9XK-BD2Y] (advocating for the limited use of non-trial resolutions in foreign bribery cases). For a broader discussion of the role of settlements in deterring corporate crime, see Samuel W. Buell, A Restatement of Corporate Criminal Liability’s Theory and Research Agenda, 47 J. Corp. L. 937, 953–55 (2022) (examining the role of settlement enforcement in corporate criminal liability). The OECD Anti-Bribery Working Group discussed the use of non-trial resolutions in its 2021 recommendations. The working group encouraged states to consider adopting non-trial resolutions but recommended ensuring that transparency, due process, and accountability principles were upheld. See OECD, Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions, arts. XVII–XVIII (2021). ↑
209. . Lelieur, supra note 193, at 228. ↑
210. . Id. (noting that “Sapin II was urgently awaited because [anticorruption-focused] international organizations . . . had criticized France for being lax on corruption”). ↑
211. . Id. As Juliette Lelieur finds:

     [T]he private sector, in particular French companies operating globally, clamored for legislative action. For one thing, contrary to international practice, French law did not require companies to have anticorruption compliance programmes. For another, several companies had paid heavy fines in the United States for acts of corruption that the French judicial system was unable to punish. ↑

212. . Olivia Dufour, Quel avenir pour la convention judiciaire d’intérêt public? [What future for the judicial public interest agreement?], Actu-Juridique (Nov. 7, 2016), https://www.actu-juridique.fr/affaires/quel-avenir-pour-la-convention-judiciaire-dinteret-public/ [https://perma.cc/
     5H4M-JBSS]. ↑
213. . Kathrin Betz, Switzerland, in Elgar Concise Encyclopedia of Corruption Law 398, 400 (Mark Pieth & Tina Søreide eds., 2023); Marieke Breijer, Swiss AG: DPAs
     “Something We Should Introduce”, Glob. Investigations Rev. (Mar. 7, 2024), https://globalinvestigationsreview.com/news-and-features/investigators-guides/switzerland/article/
     swiss-ag-dpas-something-we-should-introduce [https://perma.cc/PMX6-38ER]. ↑
214. . Betz, supra note 213, at 400. ↑
215. . Breijer, supra note 213. ↑
216. . Betz, supra note 213, at 400. ↑
217. . Breijer, supra note 213. ↑
218. . Nicole M. Argentieri, Acting Assistant Att’y Gen., DOJ Criminal Division, Keynote Address at the 40th International Conference on the Foreign Corrupt Practices Act (Nov. 29, 2023) [hereinafter Argentieri, Keynote Address]. ↑
219. . Brewster & Buell, supra note 136, at 210 (“FCPA prosecutions . . . are among the most complicated and sprawling investigations federal prosecutors can be tasked with handling.”). ↑
220. . Nicola Bonucci, International cooperation (including MLA), in Elgar Concise Encyclopedia of Corruption Law 280, 280 (Mark Pieth & Tina Søreide eds. 2023) (“[A]ccording to an OECD survey carried out in 2015, 70% of anti-corruption law enforcement officials report that MLA challenges have had a negative impact on their ability to carry out anti-corruption work.”). ↑
221. . Id. at 281. ↑
222. . Argentieri, Keynote Address, supra note 218. ↑
223. . Id.; see also Rosenstein, Remarks, supra note 127 (referring to cooperation with foreign counterparts as a “force multiplier[]”). ↑
224. . Argentieri, Keynote Address, supra note 218. ↑
225. . Id. ↑
226. . Greg. D. Andres, Uzo Asonye, Sidney Bashago, Martine M. Beamon, Robert A. Cohen, Daniel S. Kahn, Tatiana R. Martins, Fiona R. Moran, Paul J. Nathanson & Patrick S. Sinclair, DOJ Leadership Discusses FCPA Enforcement Trends and Guidance, NYU Compliance & Enf’t Blog (Dec. 14, 2023), https://wp.nyu.edu/compliance_enforcement/2023/12/14/doj-leadership-discusses-fcpa-enforcement-trends-and-guidance/ [https://perma.cc/SK9C-J8W3]. ↑
227. . Argentieri, Keynote Address, supra note 218. ↑
228. . See America’s Legal Forays Against Foreign Firms, supra note 184 (identifying how foreign countries are cooperating in FCPA settlements to gain economic advantages). ↑
229. . Press Release, Dep’t of Just., Société Générale S.A. Agrees to Pay $860 Million in Criminal Penalties for Bribing Gaddafi-Era Libyan Officials and Manipulating LIBOR Rate (June 4, 2018), https://www.justice.gov/archives/opa/pr/soci-t-g-n-rale-sa-agrees-pay-860-million-criminal-penalties-bribing-gaddafi-era-libyan [https://perma.cc/L8AW-DJKA]. The Société Générale case addressed FCPA claims and LIBOR manipulation of resolutions. The firm paid $585 million in fines for the corruption claims and $275 million for the LIBOR claims. Id. ↑
230. . Id. ↑
231. . Id. ↑
232. . Id.; Matthew J. Feeley, Beyond “Equity”: The Continued Search for Guiding Principles of Transnational Anti-Corruption Investigations, 7 U. Bologna L. Rev. 147, 160–61 (2022). ↑
233. . Feeley, supra note 232, at 161. Feeley further notes that the DOJ “appears” to have delayed its process to allow the French government additional time to conclude its investigation and enter parallel settlements. Id. ↑
234. . See supra text accompanying notes 185–192. ↑
235. . For a description of the DOJ’s efforts to encourage voluntary disclosure, see Brewster & Buell, supra note 136, at 211, stating:

     Again and again, in speeches, policy manuals, press releases, and settlement documents, DOJ officials have stated that corporations will be rewarded for bringing criminal conduct to the attention of the government and penalized for failing to do so in instances in which the government learns of the conduct independently through whistleblowers, press reports, regulatory inspections, informants, civil lawsuits, and other avenues. DOJ has been particularly eager to emphasize this point in the FCPA context, where it is believed that far-flung international bribery might be impossible to discover in most cases without corporate confessions. ↑

236. . Id. ↑
237. . Arlen, supra note 165, at 203. ↑
238. . Id. (“Firms can assist enforcement authorities by adopting an effective compliance program designed to deter and detect misconduct, self-reporting detected misconduct, and providing the government with evidence on its extent and the identities of the individuals responsible for it.”). ↑
239. . Argentieri, Keynote Address, supra note 218 (discussing instances of leniency and emphasizing that the DOJ is “committed to using all the tools in our tool kit to encourage companies to make voluntary self-disclosures”); Arlen, supra note 165, at 203. ↑
240. . Kenneth A. Polite, Jr., Assistant Att’y Gen, Dep’t of Just., Speech on Revisions to the Criminal Division’s Corporate Enforcement Policy (Jan. 17, 2023); see also Kimberley A. Parker, Jay Holtmeier, Erin G.H. Sloane, Christopher Cestaro, Sandra Redivo, Matthew Girgenti, Elliot Shackelford & Keun Young Bae, Global Anti-Bribery Year-in-Review: 2023 Developments and Predictions for 2024, WilmerHale (Jan. 30, 2024), https://www.wilmerhale.com/en/insights/
     client-alerts/20240129-global-anti-bribery-year-in-review-2023-developments-and-predictions-for-2024 [https://perma.cc/CN4U-47NF]. ↑
241. . Holtmeier, supra note 49, at 516–17; Oded, supra note 13, at 533–34. ↑
242. . Holtmeier, supra note 49, at 516–17. ↑
243. . Id. ↑
244. . Id. ↑
245. . Press Release, Airbus, supra note 106; Lelieur, supra note 193, at 229. ↑
246. . Press Release, Airbus, supra note 106. ↑
247. . Id. ↑
248. . Krishna N. Das & Liz Lee, Malaysia Probes Allegations that Airbus Bribed AirAsia Bosses, Reuters (Feb. 1, 2020), https://www.reuters.com/article/world/malaysia-probes-allegations-that-airbus-bribed-airasia-bosses-idUSKBN1ZV3M4/ [https://perma.cc/CH2H-VJ5D]. ↑
249. . Other commentators have also critiqued the American position that it should retain the criminal penalties from FCPA resolutions. See, e.g., Pieth, OECD anti-bribery initiative, supra note 150, at 347 (arguing that “the US-driven approach never really had sustainable development in the [Global] South in mind” and noting that in a noteworthy corruption scandal that “push[ed] Mozambique over the edge of bankruptcy, the US Department of Justice collected fines and confiscated illicit earnings in the hundreds of millions of USD. However, the US treasury profited from these payments rather than the victim state.”). ↑
250. . See generally Jacinta Anyango Oduor, Francisca M. U. Fernando, Agustin Flah, Dorothee Gottwald, Jeanne M. Hauch, Marianne Mathias, Ji Won Park & Oliver Stolpe, WBG, Left Out of the Bargain: Settlements in Foreign Bribery Cases and Implications for Asset Recovery (2014), https://star.worldbank.org/sites/default/files/
     9781464800863.pdf [https://perma.cc/QQC4-VZVP]. ↑
251. . See, e.g., Matthew Stephenson, UNCAC, Asset Recovery, and the Perils of Careless Legal Analysis, Glob. Anticorruption Blog (May 8, 2014), https://globalanticorruptionblog
     .com/2014/05/08/uncac-asset-recovery-and-the-perils-of-careless-legal-analysis/ [https://perma.cc/
     WXY9-6FGL] (“[T]here is no reasonable interpretation of the UNCAC that would count these punitive fines as assets to be ‘returned.’”); Matthew Stephenson, What’s Left Out of “Left Out of the Bargain”, Glob. Anticorruption Blog (March 18, 2014), https://globalanticorruptionblog
     .com/2014/03/18/whats-left-out-of-left-out-of-the-bargain/ [https://perma.cc/75LV-WNUK] (discussing potential adverse incentive effects of promoting duplicative enforcement actions). ↑
252. . Argentieri, Keynote Address, supra note 218 (highlighting the DOJ’s first global FCPA resolution with Columbia, where the bribery occurred). ↑
253. . Press Release, Odebrecht and Braskem, supra note 104. ↑
254. . Press Release, Petróleo, supra note 152. ↑
255. . See Marcelo dos Santos Barradas Correia, Myles K. Bartley & Regina Freitas, A Comparison of the New Brazilian Anticorruption Law, the FCPA (US), and the UK Bribery Act, Ass’n Corp. Couns. (Sep. 24, 2013), https://www.acc.com/resource-library/comparison-new-brazilian-anticorruption-law-fcpa-us-and-uk-bribery-act [https://perma.cc/8ARS-X95G] (describing Brazil’s 2013 “Anticorruption Law” that imposes civil and administrative liability on corporations that commit certain corrupt acts). ↑
256. . Press Release, U.S. Dep’t of Just., Goldman Sachs Resolves Foreign Bribery Case and Agrees to Pay Over $2.9 Billion (Oct. 22, 2020) [hereinafter Press Release, Goldman Sachs], https://www.justice.gov/usao-edny/pr/goldman-sachs-resolves-foreign-bribery-case-and-agrees-pay-over-29-billion [https://perma.cc/HE3D-YFRS]. ↑
257. . Bradley Hope & Tom Wright, U.A.E.’s Ambassador to U.S. Linked to 1MDB Scandal, Wall St. J. (June 30, 2017); for a very readable account of the 1MDB Scandal, see generally Tom Wright & Bradley Hope, Billion Dollar Whale (2018). ↑
258. . Press Release, Goldman Sachs, supra note 256. For a full description of the DOJ crediting, see also Case Information: United States of America v. The Goldman Sachs Group, Inc., Stan. L. Sch. Foreign Corrupt Pracs. Act Clearinghouse: Enf’t Action Dataset, https://fcpa
     .stanford.edu/enforcement-action.html?id=821 [https://perma.cc/6RHF-URVL]. The DOJ credited foreign governments and domestic agencies in the Goldman Sachs resolution. See id. (noting that within the United States, the DOJ credited the following agencies and governments “$154 million civil penalty to the Board of Governors of the Federal Reserve System; $400 million civil penalty in the parallel SEC enforcement action; $150 million civil penalty to the New York State Department of Financial Services”). ↑
259. . Benin Lee, Goldman Sachs and 1MDB Arbitration, Arb. Brief (Feb. 5, 2024), https://thearbitrationbrief.com/2024/02/05/goldman-sachs-and-1mdb-arbitration [https://perma.cc/
     W578-5978]. ↑
260. . The United States has negotiated parallel resolutions with the South African government regarding ABB Limited, McKinsey & Company Africa, and SAP SE. Press Release, ABB Agrees, supra note 1; Press Release, McKinsey & Company, supra note 12; Press Release, SAP, supra note 12. The United States and Ecuador negotiated parallel resolutions with Gunvor SA, and the United States and Colombia negotiated parallel resolutions with Corficolombiana. Press Release, U.S. Dep’t of Just., Guvnor S.A. Pleads Guilty to Scheme to Bribe Ecuadorian Officials and Ordered to Pay over $600 Million in Criminal Penalties (Mar. 1, 2024), https://www.justice.gov/usao-edny/pr/gunvor-sa-pleads-guilty-scheme-bribe-ecuadorian-officials-and-ordered-pay-over-600 [https://perma.cc/9BMW-Z6RC]; Press Release, U.S. Dep’t of Just., Corficolombiana to Pay $80M to Resolve Foreign Bribery Investigations (Aug. 10, 2023), https://www.justice.gov/archives/opa/
     pr/corficolombiana-pay-80m-resolve-foreign-bribery-investigations [https://perma.cc/D7CG-XDVA]. ↑
261. . Firms are also unlikely to sue the state under an investment treaty if the government collaborates with American authorities on a global settlement. ↑
262. . For a discussion of the concerns about “re-corruption” in asset return, see Cecily Rose, The Progressive Development of International Law on the Return of Stolen Assets: Mapping the Paths Forward, 35 Eur. J. Int’l L. 701, 710–13 (2024). ↑
263. . Assets returned through the Kleptocracy Initiative are often subject to restrictions on their use and monitored to prevent “re-corruption” of the assets. See U.S. Dep’t of State, U.S. Asset Recovery Tools & Procedures: A Practical Guide for International Cooperation 1, 10 (2012) (describing DOJ’s 2010 Kleptocracy Asset Recovery Initiative and documenting repatriations to affected states). See Laurence R. Helfer, Cecily Rose & Rachel Brewster, Flexible Institution Building in the International Anti-Corruption Regime: Proposing a Transnational Asset Recovery Mechanism, 117 Am. J. Int’l L. 559, 570–71 (2023). Separately, the United States deposits financial penalties retained from FCPA settlements into the U.S. Treasury. The U.S. government can always use these funds for international development goals and compensate states this way, but this is unlikely to occur in our current political climate.

     As of January 2025, the DOJ has disbanded the Kleptocracy Initiative. It is not clear whether the United States will repatriate stolen assets through other means. Cf. Alexis Loeb, Axing DOJ’s Kleptocracy Team Is a Boon for Foreign Bribe Takers, Bloomberg Law (May 13, 2025), https://news.bloomberglaw.com/us-law-week/axing-dojs-kleptocracy-team-is-a-boon-for-foreign-bribe-takers [https://perma.cc/Y2B6-H6H6] (discussing the DOJ’s disbanding of the Kleptocracy Initiative). ↑

264. . E.g., Press Release, U.S. Dept. of Just., United States to Repatriate Nearly $1 Million to Federal Republic of Nigeria (Feb. 16, 2023), https://www.justice.gov/archives/opa/pr/united-states-repatriate-nearly-1-million-federal-republic-nigeria [https://perma.cc/62SR-LHUL]. ↑
265. . Press Release, U.S. Dep’t of Just., Justice Department Recovers an Additional $20M in Misappropriated 1MDB Funds (Jan. 17, 2025), https://www.justice.gov/archives/opa/pr/justice-department-recovers-additional-20m-misappropriated-1mdb-funds [https://perma.cc/62SR-LHUL]; Press Release, Dept. of Just., Justice Department Repatriates $1.4B Misappropriated 1MDB Funds to Malaysia (June 13, 2024), https://www.justice.gov/archives/opa/pr/justice-department-repatriates-14b-misappropriated-1mdb-funds-malaysia [https://perma.cc/S6ZR-M4YK]. ↑
266. . Press Release, U.S. Dept. of State, U.S. Commitments at the Global Anti-Corruption Summit (May 12, 2016), https://2009-2017.state.gov/r/pa/prs/ps/2016/05/257124.htm [https://
     perma.cc/NHH2-PJN7]. ↑
267. . See Rod Rosenstein, Deputy Atty. Gen., Dep’t of Just., Deputy Attorney General Rod Rosenstein Delivers Remarks to the New York City Bar White Collar Crime Institute (May 9, 2018) [hereinafter Rosenstein Speech] (noting diplomatic and forum shopping concerns with FCPA enforcement); see also Steven Arrigg Koh, Foreign Affairs Prosecutions, 94 N.Y.U. L. Rev. 340, 362 (2019) (discussing diplomatic aspects of foreign prosecutions). ↑
268. . However, the United States has also cooperated with Mexico in other criminal cases. See Koh, supra note 267, at 362. ↑
269. . Rosenstein Speech, supra note 267. ↑
270. . Id. ↑
271. . Bo Yue, Sportsmanlike Conduct? DOJ Announces Policy to Avoid ‘Piling On’ Monetary Sanctions in Corporate Resolutions, Steptoe (May 14, 2018), https://www.steptoe.com/en/news-publications/sportsmanlike-conduct-doj-announces-policy-to-avoid-piling-on-monetary-sanctions-in-corporate-resolutions.html [https://perma.cc/W83T-EQ8K] (discussing Rosenstein’s concern of “prosecutor shopping”). ↑
272. . Rosenstein Speech, supra note 267. ↑
273. . Rosenstein Speech, supra note 267 (“Cooperating with a different agency or a foreign government is not a substitute for cooperating with the Department of Justice.”). ↑
274. . See discussion infra section III(B)(3). ↑
275. . For its jurisdiction under the FCPA, the DOJ noted that Airbus “sent emails while located in the United States and participated in and provided luxury travel to foreign officials within the United States.” Press Release, Airbus, supra note 245. ↑
276. . See id. (describing DOJ’s joint prosecution alongside French and U.K. authorities). ↑
277. . Feeley, supra note 232, at 171. Feeley also highlights that the French government faced domestic criticism cooperating with the United States on the Airbus resolution. Id. ↑
278. . Press Release, Airbus, supra note 106. ↑
279. . Id. ↑
280. . Id. ↑
281. . Id. (noting that the United States resolution recognizes “the strength of France’s and the United Kingdom’s interests over the Company’s corruption-related conduct” and “the compelling equities of France and the United Kingdom to vindicate their respective interests as those countries deem appropriate” and highlighting that “the department has taken into account these countries’ determination of the appropriate resolution into all aspects of the U.S. resolution”). ↑
282. . An economic nationalist view would be that the United States wanted to ensure that Airbus did not receive a sweetheart deal given its competitive relationship with Boeing, to which the FCPA applies. The French government viewed U.S. involvement in the Airbus case as motivated by American interests in Boeing. Feeley, supra note 232, at 171. ↑
283. . See Press Release, Airbus, supra note 106 (“The [DOJ] will continue to work aggressively with our partners across the globe to root out corruption, particularly corruption that harms American interests.”). ↑
284. . In the Airbus press release, the U.S. prosecutors highlighted the $3.9 billion penalty, of which the United States government retained less than $587 million after crediting sums Airbus paid to the Parquet National Financier in France and the Serious Fraud Office in the United Kingdom. Press Release, Airbus, supra note 106. ↑
285. . Pieth, OECD Anti-Corruption Initiative, supra note 150, at 346. The OECD Working Group issues reviews of states in “phases.” Hortense Jongen, Peer Review and Compliance with International Anti-Corruption Norms: Insights from the OECD Working Group on Bribery, 47 Rev. Int’l Studies 331, 340–41 (2021). The OECD is currently in Phase Four of its country reviews and focuses on enforcement. Pieth, OECD Anti-Corruption Initiative, supra note 150, at 346. ↑
286. . Pieth, OECD Anti-Corruption Initiative, supra note 150, at 346–47 (discussing the role of the Working Group’s in (1) monitoring state compliance through peer-review evaluations and (2) issuing recommendations on implementation). The Working Group views the non-binding recommendations as an alternative to amending the convention and has adopted recommendations aimed at increasing its effectiveness, including recommending that states adopt non-trial resolutions for bribery crimes. Id. There are other anti-corruption organizations, both global and regional, but the OECD Convention is the most prominent for its focus on the supply-side of bribery. ↑
287. . The Convention places an obligation on states to enforce anti-bribery laws but allows states to maintain their normal rules for prosecutorial discretion. OECD Anti-Bribery Convention, supra note 28, at art. 5. ↑
288. . Id. at art. 4, ¶ 1; see also discussion supra subpart I(A). States have a process obligation to consult on who has the most “appropriate jurisdiction” if requested. However, the convention neither grants any state with the right of first action nor prohibits multiple prosecutions. See OECD Anti-Bribery Convention, supra note 28, at art. 4 ¶ 3 (“When more than one Party has jurisdiction over an alleged offence described in this Convention, the Parties involved shall, at the request of one of them, consult with a view to determining the most appropriate jurisdiction for prosecution.”). ↑
289. . Brewster, supra note 14, at 1664; Stephan, supra note 13, at 345. ↑
290. . See discussion supra subpart I(B) (describing the early enforcement paradigm of American unilateralism); Brewster & Dryden, supra note 58 (discussing the underenforcement of the OECD Convention by most members in its early years). ↑
291. . Stephan, supra note 13, at 339. ↑
292. . Brewster, supra note 14, at 1643; Stephan, supra note 15, at 356 (noting that the OECD Convention “clear[ed] the way for US extraterritorial enforcement [and] . . . treaty partners implicitly surrendered any objection to US regulation . . . even if that regulation reached their nationals”). ↑
293. . See, e.g., Joseph P. Griffin, Extraterritoriality in U.S. and EU Antitrust Enforcement,
     67 Antitrust L.J. 159, 185 (1999) (discussing cooperation between American and European regulators in the antitrust sphere); Edward T. Swaine, The Local Law of Global Antitrust, 43 Wm. & Mary L. Rev. 627, 647–48 (2001) (same). For a comparison of antitrust and competition practices to anti-bribery, see Holtmeier, supra note 49, at 518–19. ↑
294. . See Griffin, supra note 293, at 185 (describing the factors informing extraterritorial antitrust enforcement); Stephan, supra note 13, at 350–52 (describing the historical conflict between the United States and other countries regarding the U.S. anti-cartel law). ↑
295. . Griffin, supra note 293, at 160–61. ↑
296. . Stephan, supra note 15, at 350. ↑
297. . Griffin, supra note 293, at 160–61; Stephan, supra note 15, at 353. ↑
298. . Griffin, supra note 293, at 180–81; Stephan, supra note 15, at 353. ↑
299. . Griffin, supra note 293, at 180. ↑
300. . Id. at 183. ↑
301. . Id. (listing six non-exclusive factors for determining jurisdiction, including the relative significance of the conduct within each territory and the degree of conflict with foreign law). ↑
302. . Griffin, supra note 293, at 183; Stephan, supra note 15, at 352. ↑
303. . The OECD defines positive comity thus: “‘Positive comity’ allows one party (requesting) to request the other party (requested) to take appropriate enforcement actions with respect to anti-competitive activities occurring in the territory of the requested party that adversely affect important interests of the requesting party.” OECD, Competition Co-Operation and Enforcement: Inventory of Co-operation Agreements (2021) [hereinafter OECD Report], https://www
     .oecd.org/content/dam/oecd/en/topics/policy-sub-issues/competition-and-international-co-operation/2022-inventory-of-international-cooperation-agreements-on-competition.pdf/_jcr
     _content/renditions/original./2022-inventory-of-international-cooperation-agreements-on-competition.pdf [https://perma.cc/M5GJ-AXA8]. ↑
304. . Griffin, supra note 293, at 183. ↑
305. . Bilateral relations with United States of America, European Comm’n, https://
     competition-policy.ec.europa.eu/international-relations/bilateral-relations/usa_en [https://perma
     .cc/X95D-KZMY]; Griffin, supra note 293, at 183; Stephan, supra note 15, at 352. ↑
306. . See OECD Report, supra note 303. ↑
307. . Griffin, supra note 293, at 183 (“Positive comity is intended to eliminate the long-running dispute concerning the propriety under international law of assertions of extraterritorial jurisdiction.”); Stephan, supra note 13, at 353. ↑
308. . Griffin, supra note 293, at 183; Stephan, supra note 15, at 352. ↑
309. . Griffin, supra note 293, at 183; Stephan, supra note 15, at 352. ↑
310. . The anti-bribery regime has not seen the same open legal conflict as the global competition regime (e.g., blocking statutes or anti-suit injunctions) because the OECD Convention endorsed broad extraterritorial jurisdiction. There was no similar international agreement in the competition law, so states were firmer in pushing back against American exterritoriality. Compare Griffin, supra note 293, at 160–61 (describing the “considerable backlash from foreign governments” to U.S. extraterritorial antitrust enforcement, including the use of “blocking” statutes and diplomatic protests), with Brewster, supra note 14, at 1664–65 (explaining that the OECD Convention’s endorsement of broad jurisdiction “blunted foreign government objections” and made retaliation politically more difficult). ↑
311. . Rosenstein, Remarks, supra note 127. ↑
312. . See supra Figure 2. ↑
313. . The United States is occasionally accused of having a revenue motive. See, e.g., Pieth, OECD Anti-Corruption Initiative, supra note 150, at 347 (criticizing the United States for allowing its treasury to “profit” from the collection of criminal penalties rather than returning funds to states where the corruption occurred); Mike Koehler, “Total”ly Milking the FCPA Cash Cow, FCPA Professor (June 3, 2011), https://fcpaprofessor.com/totally-milking-the-fcpa-cash-cow/ [https://
     perma.cc/7SGQ-HY54] (discussing the DOJ’s and SEC’s desire to generate funds). But see Matthew Stephenson, The “FCPA Cash Cow” Story Is Bull: Why Vigorous Enforcement Is Not About Raising Revenue, The Glob. Anticorruption Blog (Feb. 9, 2016), https://
     globalanticorruptionblog.com/2016/02/09/fcpa-enforcement-is-not-about-raising-revenue/ [https://
     perma.cc/TYF3-J3C6] (arguing that it is implausible that FCPA enforcement is motivated by a desire to produce revenue). ↑
314. . Davis, supra note 69, at 239–40 (explaining that the global and dynamic nature of anti-bribery regime can cause disagreements among enforcement agencies). ↑
315. . Kevin E. Davis, Guillermo Jorge & Maíra R. Machado, Transnational Anticorruption Law in Action: Cases from Argentina and Brazil, 40 L. & Soc. Inquiry 664, 676, 688 (2015). ↑
316. . Cf. id. at 693 (questioning whether foreign intervention reduced pressure on local Argentinian institutions to respond to local financial misconduct). ↑
317. . Acorn, supra note 175, at 900; Davis, Judicial Review, supra note 205, at 754. ↑
318. . For a discussion of the move towards more flexible institutions given shifts in geopolitics, see Felicity Vabulas & Duncan Snidal, Organization Without Delegation: Informal Intergovernmental Organizations (IIGOs) and the Spectrum of Intergovernmental Arrangements, 8 Rev. Int’l Orgs. 193, 194, 209–11 (2013); Charles B. Roger, The Origins of Informality: Why the Legal Foundations of Global Governance Are Shifting, and Why It Matters 1–3 (2020); Paul B. Stephan, The World Crisis and International Law: The Knowledge Economy and the Battle for the Future 269–70 (2023). ↑
319. . See supra Part III. ↑
320. . See, e.g., WTO Reform: Making Global Rules Work for Global Challenges: Hearing Before the S. Comm. on Fin., 116th Cong. 55–58 (2020) (statement of Jennifer A. Hillman) (criticizing recent U.S. attempts to destroy the Appellate Body); Mark A. Pollack, International Court Curbing in Geneva: Lessons from the Paralysis of the WTO Appellate Body, 36 Governance 23, 31–32 (2023) (discussing the collapse of the Appellate Body as the United States resists formal dispute settlement). ↑
321. . For a similar argument, see Stephan, supra note 15, at 339, 357. ↑
322. . See supra section II(B)(1); Argentieri, Keynote Address, supra note 218. ↑
323. . See supra section II(B)(3). ↑
324. . Argentieri, Keynote Remarks, supra note 218. ↑
325. . See supra subpart II(A). ↑
326. . See Corruption Watch UK, Out of Court, Out of Mind: Do Deferred Prosecution Agreements and Corporate Settlements Fail to Deter Overseas Corruption 11 (2016), https://shadowworldinvestigations.org/wp-content/uploads/2019/09/
     54261c_423071d2a88f4af0be0a0309f6c51199.pdf [https://perma.cc/YD3Z-ZDQP] (“[O]ffering DPAs and NPAs solely to corporate offenders . . . makes it appear that companies can buy their way out of the justice system in a way that no other person can.”); Radha Ivory & Tina Søreide, The International Endorsement of Corporate Settlements in Foreign Bribery Cases, 69 Int’l & Compar. L.Q. 945, 963 (2020) (discussing the lower sanctions associated with non-trial resolutions). ↑
327. . See Ivory & Søreide, supra note 326, at 963 (noting that the OECD Working Group on Bribery has suggested “some domestic settlement laws and decisions” undermine effective, proportionate and dissuasive criminal sanctions for foreign bribery). ↑
328. . See Corruption Watch UK, supra note 326, at 9 (explaining critics’ belief that DPAs and NPAs, unlike guilty pleas, shield companies from the negative financial consequences associated with a criminal conviction). ↑
329. . See id. (arguing that non-trial settlements jeopardize the tenets of the OECD-Anti Bribery Convention). ↑
330. . Buell, supra note 208, at 955 (discussing the collateral consequence of corporate settlements). ↑
331. . See Acorn, supra note 175, at 895–96 (noting the DPAs and NPAs have become favored tools of U.S. prosecutors as they encourage corporations to produce evidence quickly, simplify the enforcement action, and reduce “the resource burden on the state of a full-scale prosecution against a well-resourced corporation for a cross-border crime such as foreign bribery”). ↑
332. . Kevin Davis starts his book recounting how, early on, American judges simply dismissed cases where the DOJ attempted to prosecute foreign nationals engaged in foreign corrupt practices. See Davis, supra note 69, at 1–2 (acknowledging Justice Breyer’s criticism of “us[ing] resources of the United States Attorney’s Office to prosecute some foreign nationals involved in a foreign company, engaged in conduct which was foreign” in United States v. Sidorenko). ↑
333. . OECD, Recommendation of the Counsel for Further Combating Bribery of Foreign Public Officials in International Business Transactions 9 (2021). ↑
334. . See Memorandum from Sally Quillian Yates, Individual Accountability for Corporate Wrongdoing, U.S. Dep’t of Just. 1 (Sep. 9, 2015) (emphasizing the importance of individual prosecutions by noting that “[o]ne of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing”). ↑
335. . Lisa O. Monaco, Deputy Att’y Gen., Remarks on Corporate Criminal Enforcement, (Sep. 15, 2022) (stating that going after individuals in corporate crime cases is a “top priority”), https://www.justice.gov/archives/opa/speech/deputy-attorney-general-lisa-o-monaco-delivers-remarks-corporate-criminal-enforcement [https://perma.cc/AU95-952A]. ↑
336. . See Brandon L. Garrett, The Corporate Criminal as Scapegoat, 101 Va. L. Rev. 1789, 1790 (2014) (discussing the corporation being used as a scapegoat); Corruption Watch UK, supra note 326, at 9–10 (describing how DPAs/NPAs have become “a substitute for individual accountability for financial crime”). ↑
337. . Press Release, U.S. Att’ys Off., E.D.N.Y., Former Goldman Sachs Managing Director Sentenced to 10 Years in Prison for His Role in Massive Bribery and Money Laundering Scheme (Mar. 9, 2023), https://www.justice.gov/usao-edny/pr/former-goldman-sachs-managing-director-sentenced-10-years-prison-his-role-massive [https://perma.cc/4FZM-6DBX] (noting that a jury convicted Roger Ng, and Tim Leissner pleaded guilty). ↑
338. . See, e.g., Richard C. Paddock, Najib Razak, Malaysia’s Former Prime Minister, Found Guilty in Graft Trial, N.Y. Times (July 28, 2020), https://www.nytimes.com/2020/07/28/
     world/asia/malaysia-1mdb-najib.html [https://perma.cc/VQ96-NNCR]. Swiss prosecutors have also convicted two executives of PetriSaudi, a Geneva-based company, of acting as middlemen in the 1MBD scandal and embezzling more than $1.8 billion. Sam Jones, ‘Obscenely Greedy’ Oil Executives Handed Swiss Jail Terms for Role in 1MDB Fraud, Fin. Times (Aug. 28, 2024), https://www.ft.com/content/6c70d17b-4546-462d-9d86-99e1c50bf9cd [https://perma.cc/9TVA-K2LX]. ↑
339. . Former President Lula da Silva was initially convicted of bribery. However, Brazilian courts overturned that conviction after finding that the prosecution was brought in the wrong venue. Ernesto Londoño & Letícia Casado, Brazil’s Ex-President ‘Lula’ May Run for Office Again as Court Cases Are Tossed, N.Y. Times (Mar. 8, 2021), https://www.nytimes.com/2021/03/08/
     world/americas/brazil-lula-supreme-court.html [https://perma.cc/QN8S-JLE9]. ↑
340. . Vinod Sreeharsha, Brazil: Former C.E.O. Is Sentenced to 19 Years in Corruption Inquiry, N.Y. Times (Mar. 8, 2016), https://www.nytimes.com/2016/03/09/world/americas/brazil-former-ceo-is-sentenced-to-19-years-in-corruption-inquiry.html [https://perma.cc/R8BG-7AYD]. ↑
341. . Exec. Order No. 14,209, 90 Fed. Reg. 9587 (Feb. 10, 2025) [hereinafter 2025 E.O.]. ↑
342. . Jeanna Smialek, Trump Tried to Kill Anti-Bribery Rule He Deemed ‘Unfair,’ New Book Alleges, N.Y. Times (Jan. 15, 2020), https://www.nytimes.com/2020/01/15/business/economy/
     trump-bribery-law.html [https://perma.cc/HMA2-SC3X]. ↑
343. . David B. Anders, Ralph M. Levene & Randall W. Jackson, White-Collar and Regulatory Enforcement: What Mattered in 2024 and What to Expect in 2025, Harv. L. Sch. F. on Corp. Governance (Feb. 5, 2025), https://corpgov.law.harvard.edu/2025/02/05/white-collar-and-regulatory-enforcement-what-mattered-in-2024-and-what-to-expect-in-2025/ [https://perma.cc/
     AP67-XQ9K]. ↑
344. . What to Watch For in FCPA Enforcement in 2025, Covington & Burling LLP (Winter 2025), https://www.cov.com/en/news-and-insights/insights/2025/02/what-to-watch-for-in-fcpa-enforcement-in-2025 [https://perma.cc/AP67-XQ9K] (noting that the first Trump Administration did not make any material changes to the Obama-era FCPA enforcement policy). ↑
345. . See Rosenstein Memo, supra note 126, at 1 (directing DOJ attorneys to coordinate in resolving corporate misconduct to avoid duplicative penalties). ↑
346. . See Memorandum from Pamela Bondi, Att’y Gen., on Total Elimination of Cartels and Transnational Organized Crime to Emps. of U.S. Dep’t of Just. (Feb. 5, 2025) (directing enforcement of the FCPA to focus on cartels and transnational organized crime). ↑
347. . See 2025 E.O., supra note 341. ↑
348. . Id. ↑
349. . Id. ↑
350. . See id. (proclaiming that the then-current manner of FCPA enforcement was hindering the American economy and national security). ↑
351. . Michael S. Diamant, Christopher W.H. Sullivan & Jason H. Smith, FCPA Enforcement Against U.S. and Non-U.S. Companies, 8 Mich. Bus. & Entrepreneurial L. Rev. 353, 354 (2019) (“In its forty-two years of existence, the FCPA has attracted critics who believe that the FCPA handicaps U.S. companies by making it more difficult for them to compete against foreign companies not restricted by the law.”); see Rebecca Perlman & Alan O. Sykes, The Political Economy of the Foreign Corrupt Practices Act: An Exploratory Analysis, 9 J. Leg. Analysis 153, 154–55 (2017) (discussing the popular perception that the FCPA harms American firms). ↑
352. . Diamant et al., supra note 351, at 369. ↑
353. . Key Statistics from 1977 to Present, Stan. L. Sch. Foreign Corrupt Pracs. Act Clearinghouse: Enf’t Action Dataset, https://fcpa.stanford.edu/statistics-keys.html [https://perma.cc/X69S-T96W]. ↑
354. . Diamant et al., supra note 351, at 371. ↑
355. . See subpart II(A). ↑
356. . Diamant et al., supra note 351, at 371. ↑
357. . Stephen J. Choi & Kevin E. Davis, Foreign Affairs and Enforcement of the Foreign Corrupt Practices Act, 11 J. Empirical Legal Stud. 409, 423 (2014). ↑
358. . Id. at 433 tbl. 6, 440. ↑
359. . See Veronica Root Martinez, The Outsized Influence of the FCPA, 4 U. Ill. L. Rev. 1205, 1205 (2019) (arguing that American firms overemphasize anti-bribery concerns in their compliance programs). ↑
360. . Diamant et al., supra note 351, at 375–78. ↑
361. . See section III(B)(3). ↑
362. . Brewster & Buell, supra note 136, at 204; Diamant et al., supra note 351, at 378. ↑
363. . Brewster, Enforcing the FCPA, supra note 14, at 1670. ↑
364. . Id.; see also Perlman & Sykes, supra note 351, at 176–78 (discussing how FCPA enforcement does not disproportionately harm domestic firms, but instead may level the playing field). ↑
365. . Brewster, Enforcing the FCPA, supra note 14, at 1670. ↑
366. . Perlman & Sykes, supra note 351, at 163–64, 178. ↑
367. . Id. at 163–79. ↑
368. . Id. at 164. ↑
369. . Id. at 167–68, 170. ↑
370. . Id. at 170; see also Philip M. Nichols, The Business Case for Complying with Bribery Laws, 49 Am. Bus. L.J. 325, 333 (2012) (noting that firms that pay bribes face repeated subsequent requests for bribes because government officials know the firm will pay). ↑
371. . Nichols, supra note 370, at 332–33 (explaining how paying one bribe attracts more demands for bribes). ↑
372. . Perlman & Sykes, supra note 351, at 174–76. ↑
373. . Id. ↑
374. . Brewster, Enforcing the FCPA, supra note 14, at 1670. ↑
375. . Memorandum from Todd Blanche, Deputy Att’y Gen., U.S. Dep’t of Just., on Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA) to the Head of the Crim. Div., U.S. Dep’t of Just. 1 (June 9, 2025) [hereinafter DAG Memorandum]. ↑
376. . Austin Cope & Estelle Atkinson, FCPA Pause Is Over, Top DOJ Official Says, Glob. Investigations Rev. (June 11, 2025) (announcing the DOJ’s end to a suspension on new FCPA cases). ↑
377. . DAG Memorandum, supra note 375, at 1 (“This memorandum establishes guidelines to ensure that FCPA investigations and prosecutions are carried out in accordance with President Trump’s directive by (1) limiting undue burdens on American companies that operate abroad and (2) targeting enforcement actions against conduct that directly undermines U.S. national interests.”). ↑
378. . Id. at 2–4. For an analysis of these factors, see Kimberly A. Parker, Erin G.H. Sloane, Christopher Cestaro, Jay Holtmeier, Emily L. Stark & Meghan G. Wingert, Department of Justice Announces FCPA Guidelines, WilmerHale: Insights & News (June 10, 2025), https://www.wilmerhale.com/en/insights/client-alerts/20250610-department-of-justice-announces-fcpa-guidelines [https://perma.cc/MQF6-KUJ7]. ↑
379. . While the memorandum provides guidelines to enforce the FCPA, the DOJ has significantly cut back on the number of attorneys in the FCPA unit, indicating that it does not plan to maintain its previous pace of FCPA enforcement. As of June 2025, the number of trial attorneys in the DOJ’s Fraud section tasked with enforcing anti-bribery law decreased from thirty-two to fifteen. Andrew Goudsward, Sarah N. Lynch & Chris Prentice, US Team Investigation Foreign Bribery Dwindles, Sources Say, Reuters (June 9, 2025), https://www.reuters.com/business/
     finance/us-team-investigating-foreign-bribery-dwindles-sources-say-2025-06-09/ [https://perma
     .cc/TSX8-5GTF]; Gaspard Le Dem, Can a Gutted FCPA Unit Keep Up on Enforcement?, Glob. Investigations Rev. (July 25, 2025), https://globalinvestigationsreview.com/just-anti-corruption/article/can-gutted-fcpa-unit-keep-enforcement [https://perma.cc/3KLV-WAH9]. ↑
380. . DAG Memorandum, supra note 375, at 2–3. ↑
381. . Id. at 3. ↑
382. . Id. (repeating the E.O.’s statement that “American national security depends in substantial part on the United States and its companies gaining strategic business advantages whether in critical minerals, deep-water ports, or other key infrastructure or assets”). ↑
383. . Id. ↑
384. . Cope & Atkinson, supra note 376. ↑
385. . As of this writing, the DOJ has only brought one new FCPA case. It is against Mexican nationals residing in the United States who allegedly bribed the Mexican-state oil company, PEMEX. Kimberly A. Parker, Jay Holtmeier, Erin G.H. Sloane & Christpher Cestaro, DOJ Announces First FCPA Enforcement Activity After Months-Long Pause, NYU Compliance & Enf’t Blog (Aug. 29, 2025), https://wp.nyu.edu/compliance_enforcement/2025/08/29/doj-announces-first-fcpa-enforcement-activity-after-months-long-pause/ [https://perma.cc/76AD-V67C]. The DOJ has also offered a declination (a formal decision not to prosecute) to an American insurance company, Liberty Mutual. Letter from Lorinda I. Laryea, Acting Chief, Fraud Section Crim. Div. U.S. Dep’t of Just. & Leah B. Foley, U.S. Attorney, to Damon Hart, Chief Legal Officer for Liberty Mutual Insurance Company (Aug. 7, 2025), https://www.justice.gov/criminal/
     media/1410761/ [https://perma.cc/BA6X-ZBGK]. Liberty Mutual self-reported the alleged improper payments to the DOJ, cooperated with the investigation, and disgorged $4.7 million in profits from the activity. Id. ↑
386. . OECD Anti-Bribery Convention, supra note 28, art. 5, ¶ 1. ↑
387. . DAG Memorandum, supra note 375, at 2–3. ↑
388. . See Loeb, supra note 263 (describing the disbanding of the DOJ’s Kleptocracy Initiative). ↑
389. . See 18 U.S.C. § 3282 (criminal law violations); 18 U.S.C. § 3301 (securities fraud). ↑
390. . FCPA Resource Guide, supra note 18, at 38–39, 42–43. ↑
391. . Id. at 48–49. ↑
392. . See Gideon Mark, Private FCPA Enforcement, 49 Am. Bus. L.J. 419, 478–85 (2012) (describing shareholder derivative lawsuits and state tort laws, including unfair competition). ↑
393. . See supra subpart III(A). ↑
394. . See supra subpart III(A). ↑
395. . See Dell & McDevitt, supra note 155, https://www.transparency.org/en/publications/
     exporting-corruption-2022 [https://perma.cc/33R6-W9FP] (categorizing Switzerland and the United States as “active” enforcers and Germany, France, and the United Kingdom as “moderate” enforcers). ↑
396. . New European Taskforce Is Fit to Fill Gap Amidst U.S. Pause on Anti-Corruption Enforcement, Sidley Austin LLP: Insights (Mar. 27, 2025), https://www.sidley.com/en/insights/
     newsupdates/2025/03/new-european-taskforce-is-fit-to-fill-gap [https://perma.cc/3X5W-QL7Q]. ↑
397. . See supra section III(A)(2). ↑
398. . See Dell & McDevitt, supra note 155, at 10 (singling out the high level of U.S. enforcement actions relative to the low level common elsewhere in the world). ↑
399. . See id. at 9 tbl. 1 (providing data that adds to 145 cases with penalties for the United States, eleven for France, forty for Germany, eleven for Switzerland, and thirteen for the United Kingdom). ↑
400. . Grace Propheta, UK, French, Swiss Anti-Corruption Task Force Manages Expectations, Glob. Investigations Rev. (October 9, 2025). ↑
401. . Pieth, supra note 29, at 122–24; Alvin Shuster, In Some Countries, Bribes Remain Tax Deductible, N.Y. Times (Mar. 20, 1977), https://www.nytimes.com/1977/03/20/archives/in-some-countries-bribes-remain-tax-deductible-postlockheed-picture.html [https://perma.cc/6RDR-H636]. ↑
402. . Brewster, supra note 14, at 1656, 1658, 1670, 1675–76. ↑
403. . Brewster & Buell, supra note 136, at 200. ↑