Hastings International and Comparative Law Review


H. Lowell Brown


Recent initiatives by the Securities Exchange Commission, acting under the Foreign Corrupt Practices Act (FCPA), and by the Organization of American States and the Organization for Economic Co-operation and Development have highlighted efforts to "level the playing field" of international commerce through the prohibition of government bribery. For U.S. companies, these developments are generally positive. However, foreign entities in which U.S. companies have an interest may now find themselves subject to criminal and civil liability for commercial practices which were formerly beyond the reach of the FCPA and tolerated in their own countries. Accordingly, for U.S. companies doing business internationally and their overseas partners, as well as for foreign corporations subject to U.S. jurisdiction, there is considerable cause for concern.

This article first gives an overview of the FCPA's regulatory scheme. It then discusses the issues of subject matter and in personam jurisdiction arising from the assertion of extra- territoriality under the FCPA, and reviews various initiatives through which the United States has attempted to curb international bribery. Finally, the author considers the possible effects on both U.S. and foreign entities and individuals.