Inspirations from the US’ Increasingly Aggressive Enforcement
The enforcement of the OECD Anti-bribery Convention is not only characterized by many signatories’ “ineffective enforcement” but also by a few signatories’ “zealous enforcement.” Given that the standard rational-choice account cannot fully explain the developmental reality in leading jurisdictions, this chapter takes the US as an example and explores how variation in the institutional context in the US in past decades explains variation in the US’ efforts on transnational bribery regulation.
The starting point of this study is an awareness that the enforcement of the FCPA by the US does not result from any constructed “behavior” of a “state actor” but is embodied in multiple domestic agencies’ independent performance of their statutory duties. Then this study reviews the developmental trend of the enforcement efforts of two major enforcing agencies (i.e., the SEC and the DOJ) and finds that changes in their enforcing efforts result from their unchanging adherence to their own predefined missions in an evolving institutional context. Their enforcing efforts are a function of the extent to which their duties of enforcing the FCPA have been gradually incorporated into their central missions over time. The US’ experience has at least two inspirations for understanding the global trend of transnational bribery regulation: first, transnational bribery regulation results from the independent performance of duties of domestic enforcing agencies in an evolving context but not rational choices of an anthropomorphized “state actor” at specific moments. Second, the US’ increasingly aggressive enforcement of the FCPA can create a positive regulatory competition between the US and other signatories which makes other signatories to have no choice but to regulate transnational bribery more faithfully so as to prevent their companies from enforcement actions under the FCPA.
KeywordsFCPA SEC DOJ the US’ increasingly aggressive enforcement
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