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Full-Text Articles in Law
Fcpa Enforcement Against U.S. And Non-U.S. Companies, Michael S. Diamant, Christopher W.H. Sullivan, Jason H. Smith
Fcpa Enforcement Against U.S. And Non-U.S. Companies, Michael S. Diamant, Christopher W.H. Sullivan, Jason H. Smith
Michigan Business & Entrepreneurial Law Review
This Article explores how U.S. authorities have enforced the FCPA against non-U.S. companies and tests the perception that the FCPA disproportionately impacts U.S. businesses. After briefly discussing the FCPA, its enforcement, and its reach, this Article examines corporate FCPA enforcement activity since the statute’s enactment in 1977. It finds that foreign firms have actually fared worse under the FCPA despite the fact that DOJ and the SEC have brought more enforcement actions against domestic companies in absolute terms. The average cost of resolving an FCPA enforcement action to non-U.S. corporations of resolving an FCPA enforcement action has been more than …
Private Actors And Public Corruption: Why Courts Should Adopt A Broad Interpretation Of The Hobbs Act, Megan Demarco
Private Actors And Public Corruption: Why Courts Should Adopt A Broad Interpretation Of The Hobbs Act, Megan Demarco
Michigan Law Review
Federal prosecutors routinely charge public officials with “extortion under color of official right” under a public-corruption statute called the Hobbs Act. To be prosecuted under the Hobbs Act, a public official must promise official action in return for a bribe or kickback. The public official, however, does not need to have actual authority over that official action. As long as the victim reasonably believed that the public official could deliver or influence government action, the public official violated the Hobbs Act. Private citizens also solicit bribes in return for influencing official action. Yet most courts do not think the Hobbs …
Recent Changes In U.S. And U.K. Overseas Anti-Corruption Enforcement Under The Fcpa And The U.K. Bribery Law: Private Equity Compliance, Isaac A. Binkovitz
Recent Changes In U.S. And U.K. Overseas Anti-Corruption Enforcement Under The Fcpa And The U.K. Bribery Law: Private Equity Compliance, Isaac A. Binkovitz
Michigan Business & Entrepreneurial Law Review
The following discussion provides a preliminary guide for those tasked with steering private equity firms through the shifting obstacle course of overseas anti-corruption compliance. Section I briefly reviews the centrality of overseas anti-corruption enforcement and its role in creating a more hospitable business climate in emerging markets. Section I also examines the American and British enforcement regimes in general before analyzing the most recent changes–specifically, changes as to the scope of liability and expansion of their jurisdiction. This section is designed to help determine whether investments or acquisitions fall within the purview of either enforcement regime. Section II discusses various …
Balancing Judicial Cognizance And Caution: Whether Transnational Corporations Are Liable For Foreign Bribery Under The Alien Tort Statute, Matt A. Vega
Michigan Journal of International Law
In the process of applying the ATS to foreign bribery, this Article will examine several unresolved issues surrounding this statutory grant. It will seek to (1) determine what constitutes a "violation of the law of nations," (2) refute the proposition that private defendants may be prosecuted under the ATS for only the most shocking and egregious jus cogens violations, (3) determine when and to what extent state action is required in ATS litigation, and (4) examine the limitations of the fundamental principles of international law on ATS litigation.
The Foreign Corrupt Practices Act, Sec Disgorgement Of Profits, And The Evolving International Bribery Regime: Weighing Proportionality, Retribution, And Deterrence, David C. Weiss
Michigan Journal of International Law
This Note uses examples such as Titan Corp. to support the argument that there are reasons to question the United States' increasing reliance on disgorgement to enforce the FCPA. Despite obvious deterrence benefits, the SEC's quest for disgorgement of ill-gotten gains raises significant questions regarding extraterritoriality, proportionality, and evidentiary uncertainty. This Note looks to the history of the FCPA and both international anti-bribery agreements and foreign statutes implementing those agreements in arguing that U.S. and foreign regulators need to create a more certain, predictable enforcement climate as the number of foreign bribery enforcement actions continue to explode.
The Foreign Corrupt Practices Act As A Threat To Global Harmony, Steven R. Salbu
The Foreign Corrupt Practices Act As A Threat To Global Harmony, Steven R. Salbu
Michigan Journal of International Law
Focusing primarily on the pragmatic and moral perils of cultural imperialism, I also alluded very briefly to a "political peril" that arises from the FCPA. This peril consists of the added risk of cross-national hostility that is attributable to officious and overreaching legislation across national borders. This article will examine the political hazard in greater detail, explaining why the proliferation of FCPA-style legislation unjustifiably increases the threat to global harmony.
Are Extraterritorial Restrictions On Bribery A Viable Policy Goal Under The Global Conditions Of The Late Twentieth Century? Increasing Global Security By Controlling Transnational Bribery, Philip M. Nichols
Michigan Journal of International Law
This paper argues that global security can no longer be evaluated in the realist terms of the sovereignty of nations, and that global insecurity does not arise merely from a handful of relatively straightforward issues. As an analytical tool, this paper turns instead to the concept of "complex interdependence" put forward by Robert Keohane and Joseph Nye. This paper then demonstrates how transnational bribery damages the quality of transnational relationships, thus endangering global security. The paper concludes by examining empirical observations. Empirically, transnational bribery has contributed significantly to global instability. On the other hand, no empirical observations suggest that extraterritorial …
Policing Illicit U.S. Business Actions Overseas, Paula Stern, Alexander W. Koff
Policing Illicit U.S. Business Actions Overseas, Paula Stern, Alexander W. Koff
Michigan Journal of International Law
Review of The Foreign Corrupt Practices Act: Coping with Corruption in Transitional Economies by Jeffrey P. Bialos & Gregory Husisian
The Emerging Role Of The Quid Pro Quo Requirement In Public Corruption .Prosecutions Under The Hobbs Act, Peter D. Hardy
The Emerging Role Of The Quid Pro Quo Requirement In Public Corruption .Prosecutions Under The Hobbs Act, Peter D. Hardy
University of Michigan Journal of Law Reform
This Note discusses the quid pro quo requirement under the Hobbs Act, a federal criminal statute which applies to bribery by public officials. The author first describes two recent decisions by the Supreme Court, McCormick v. United States and Evans v. United States, which established slightly different versions of a quid pro quo requirement in public corruption prosecutions under the Hobbs Act. The author then explains that the lower federal courts interpreting McCormick and Evans have molded the quid pro quo requirement so that a prosecutor must prove in all public corruption cases under the Hobbs Act that the …
Corruption And The Foreign Corrupt Practices Act Of 1977, Fredric Bryan Lesser
Corruption And The Foreign Corrupt Practices Act Of 1977, Fredric Bryan Lesser
University of Michigan Journal of Law Reform
This article first discusses the business activities and competing interests which prompted congressional action. Part II analyzes the FCPA and attempts to solve the ambiguities inherent in the criminalization provisions, thereby clarifying which activities are proscribed by the FCPA and what is meant by the Act's corruption requirement. Finally, Part III examines the possibilities for multinational agreements prohibiting bribery.
Bribery And Brokerage: An Analysis Of Bribery In Domestic And Foreign Commerce Under Section 2 ( C ) Of The Robinson-Patman Act, Michigan Law Review
Bribery And Brokerage: An Analysis Of Bribery In Domestic And Foreign Commerce Under Section 2 ( C ) Of The Robinson-Patman Act, Michigan Law Review
Michigan Law Review
This Note first analyzes the substantive and jurisdictional criteria of section 2(c) to evaluate the possible and the desirable scope of its applicability to commercial bribery. The Note next asks whether this statute reaches bribery of domestic and foreign government officials and concludes that where the requirements of section 2(c) are otherwise met and where the person accepting the bribe is acting administratively rather than politically, the statute could be applied to bribery of agents of domestic governments. However, a wholesale application of section 2( c) to bribery of foreign government agents would leave American competitors in foreign commerce defenseless …
Penalizing Bribery Of Foreign Officials Through The Tax Laws: A Case For Repealing Section 162 (C)(1), Christopher Alan Lewis
Penalizing Bribery Of Foreign Officials Through The Tax Laws: A Case For Repealing Section 162 (C)(1), Christopher Alan Lewis
University of Michigan Journal of Law Reform
Most commentary on these congressional attempts to use tax laws to control the ethics of overseas enterprises has centered either on the effectiveness of these provisions or on the burdens and difficulties involved with their implementation. This article, while discussing these issues, is concerned primarily with the conceptual justifications and the direct economic effects of these tax provisions. The article contends that section 162(c)(1) and the pertinent provisions of the Tax Reform Act of 1976 are disguised penalties which often operate arbitrarily and unfairly and concludes that they should be repealed in favor of more equitable and effective deterrents.
Foreign Bribes And The Securities Acts' Disclosure Requirements, Michigan Law Review
Foreign Bribes And The Securities Acts' Disclosure Requirements, Michigan Law Review
Michigan Law Review
The Securities Act of 1933 and the Securities Exchange Act of 1934 require most major corporations to disclose to investors all material information concerning company operations. Although they were not intended to regulate the conduct of business, these disclosure obligations can have a deterrent effect upon improper corporate activities. The recent revelation that a significant number of corporations have been making bribes and similar payments abroad has created interest in the feasibility of employing the disclosure requirements to curtail this practice. This Note will show that, despite recent pressures for change, the Securities and Exchange Commission has continued to view …