by Stephen M. Kohn

On February 10, President Donald Trump issued an Executive Order (E.O.) to pause enforcement of the Foreign Corrupt Practices Act (FCPA). The E.O. is based upon the inaccurate premise that the United States’ enforcement of the anti-bribery law unfairly cracks down on U.S. companies and harms their competitiveness in the global marketplace. During the pause, the Justice Department will reevaluate the enforcement strategies behind the FCPA, and presumably approve a new approach to FCPA enforcement. But the intent behind the Executive Order does not bode well for future U.S. prosecutions of criminal bribe paying in foreign countries.

According to President Trump’s E.O., “Overexpansive and unpredictable FCPA enforcement against American citizens and businesses — by our own Government — for routine business practices in other nations not only wastes limited prosecutorial resources that could be dedicated to preserving American freedoms, but actively harms American economic competitiveness and, therefore, national security.” The White House Fact Sheet issued with the Executive Order further elaborates on this theory: “U.S. companies are harmed by FCPA overenforcement because they are prohibited from engaging in practices common among international competitors, creating an uneven playing field.”

This is a decades-old line of attack against the FCPA and one that is increasingly outdated as the U.S. has radically shifted its enforcement priorities towards foreign companies. The power of the FCPA has become its transnational application: the U.S. is able to crack down on both U.S. and foreign companies paying bribes overseas, protecting American competitiveness and the integrity of international markets.

President Trump has been an outspoken critic of the FCPA based on enforcement priorities that are outdated. He expressed concern over its perceived negative effects on American businesses 13 years ago, when, in a 2012 interview with CNBC, he called it a “horrible law” and stated that “every other country goes into these places, and they do what they have to do.” Times have changed.

Bad for Business?

The implication that aggressive enforcement of the FCPA hamstrings American businesses while other countries may pay bribes with no consequences does not sit square with past decade-plus of FCPA enforcement.

The data shows that, in reality, U.S. enforcement of the FCPA in recent years has overwhelmingly focused on foreign companies. According to statistics from FCPA Clearinghouse, a collaboration between Stanford Law and Sullivan & Cromwell LLP, between 2014 and 2024, approximately 71% of FCPA sanctions were levied against foreign companies.

Over the past few years there are several notable examples of major sanctions imposed by the U.S. on foreign companies for bribes paid overseas. Notably, the largest FCPA enforcement ever taken was a $3.5 billion action in 2016 taken against Odebrecht S.A. a global construction conglomerate based in Brazil and Braskem S.A. a Brazilian petrochemical company.

According to FCPA Clearinghouse, 9 out of the 10 largest FCPA actions by U.S. monetary sanctions per entity group were against foreign companies. These include $2 billion against French aerospace company Airbus, $1.7 billion against Brazilian state-owned energy company Petrobras, and $1.2 billion against the Sweden-based telecommunications company Telefonaktiebolaget LM Ericsson.

The positive impact of enforcement actions like these on the competitiveness of American companies should be self-evident. When foreign companies obtain business through bribes and other corrupt means, it harms American businesses who are competing in that marketplace.

Protecting the competitiveness of American companies has been a stated goal of DOJ officials prosecuting FCPA cases. “We will continue to vigorously prosecute bribery cases to protect domestic companies that follow the law while participating in the international marketplace,” stated U.S. Attorney Jessica D. Aber for the Eastern District of Virginia in 2024 when the DOJ announced $220 million in sanctions against the German-based software company for attempted bribes in South Africa and Indonesia.

“Foreign and domestic companies that pay bribes put honest companies at a disadvantage and distort the free and fair market and the rule of law. Today’s resolution reflects the significant efforts of law enforcement, the Criminal Division and the U.S. Attorney’s Office for the Southern District of New York to bring such companies to justice, and to maintain a competitive and level playing field for companies to do business, create jobs and thrive,” said Acting Assistant Attorney General Kenneth A. Blanco in a 2017 release announcing $965 million in sanctions against Stockholm-based Telia Company AB, an international telecommunications company, and its Uzbek subsidiary for a bribery scheme in Uzbekistan.

The U.S. Is Not Alone in Policing Foreign Bribery

The importance of the FCPA in policing the corrupt business practices of foreign companies is underscored by the fact that foreign law enforcement agencies work closely with U.S. authorities to use the FCPA to hold companies in their own countries accountable for corrupt business practices.

The list of foreign authorities who have cooperated with the U.S. on FCPA enforcement matters since 2014 is extensive. In successful prosecutions over the past decade, law enforcement agencies from sixty-two countries cooperated with U.S. cases and were officially thanked by the United States for their help.

For example, in the 2019 action against Mobile TeleSystems PJSC (MTS), the largest mobile telecommunications company in Russia, the company paid the United States a $850 million fine. Not only was the law used against a non-U.S. business, the scope of international law enforcement agencies that worked with the United States in the successful prosecution speaks for itself: the French Law Enforcement Agency, the U.K. Serious Fraud Office, the Norwegian National Authority, the Swedish Prosecution Authority, the Bermuda Monetary Authority, the Central Bank of Ireland, the Swiss Office of the Attorney General, and the Dutch Prosecution Authority, among many others.

All these law enforcement agencies recognize that fighting foreign bribery is not just a U.S. issue. Bribery distorts markets, undermines human rights, harms consumers worldwide, and hurts honest companies. This is why the United States is not the only player in the FCPA game. The Organization for Economic Cooperation and Development’s (OECD) Anti-Bribery convention (which requires signatories to adopt local laws modeled on the U.S. FCPA) has been adopted by forty-six countries, including the United Kingdom, Japan, South Korea, Canada, Australia, and every country in the European Union.

As OECD members turn to their own anti-bribery laws, these laws will provide authorities with broader jurisdiction and more impactful coverage than the U.S. FCPA. And so, even if the United States were to shut down the FCPA, U.S. businesses would still face investigations and prosecutions by numerous other countries that have similar laws.

In fact, Sullivan & Cromwell has cautioned corporate clients from responding to the potential slow down of FCPA enforcement, given the anti-bribery laws of OECD member states, the 5-year statute of limitations for FCPA civil violations (6 years for criminal), and the fact that bribery payments are still criminal and securities violations in the United States. 

For an example of foreign enforcement of anti-bribery laws, in 2017, the UK’s Serious Fraud Office (SFO) used the UK’s FCPA to successfully prosecute Rolls Royce and obtain a £497 million fine. But the SFO’s efforts to stop foreign bribery did not end there. Between 2014 and 2024, the UK SFO provided assistance to the United States in over twenty successful investigations of individuals and companies in countries such as Brazil, Bahrain, Kuwait, Indonesia, Libya, China, Angola, Kazakhstan, and Iraq.   

Moreover, the OECD anti-bribery signatories are under regular audit by the OECD concerning compliance with the convention, and the signatories are in the process of responding to OECD recommendations enhancing their anti-bribery laws. This includes a major emphasis on increasing whistleblower protections and incentives, as the OECD recognizes the “essential role” “reporting persons” “play as a source of detection of foreign bribery.”

In a major international advance for implementing enhanced detection methods, the UK’s leading think tank has recognized the importance of countries following the U.S. lead in adopting strong whistleblower laws modeled on the Dodd-Frank Act, that incentivize reporting by requiring significant awards be paid to whistleblowers whose disclosures result in successful prosecutions. Similarly, the OECD endorses paying whistleblower awards as it has strongly praised the effectiveness of the Dodd-Frank whistleblower law in its recent audits of the U.S. program. In a major breakthrough the United Kingdom’s Serious Fraud Office is now supporting enhanced whistleblower awards similar to those under the Dodd-Frank Act to enable the UK to better detect financial frauds. 

At its core, the U.S. FCPA is a law designed to protect the competitiveness of American businesses. A free and fair market works to the benefit of American enterprise. Due to the transnational application of the U.S. law, with the cooperation of foreign authorities, the FCPA has, in the past, overwhelmingly been aimed at cracking down on foreign companies which are undermining the integrity of the global market. But if the U.S. loosens its FCPA requirements on domestic companies it is not hard to imagine the international law enforcement agencies would take advantage of that deregulated environment and target U.S. businesses that thought lax anti-corruption enforcement in the U.S. would shield them from an existing worldwide network aimed at protecting foreign markets from criminals.

Conclusion

The 180-day pause President Trump has ordered on FCPA enforcement includes a reevaluation of the DOJ’s priorities for the law. The DOJ should thus double down on its emphasis on prosecuting violations of the FCPA, and continue its practice of targeting foreign companies as applicable. By doing so, the U.S. can continue to help ensure a free and fair marketplace for American companies to thrive in. Likewise, any slowdown in prosecuting U.S. companies under the FCPA will backfire, as these companies remain liable under FCPA laws actively enforced by numerous other countries. Reducing foreign bribery and holding those who corrupt government officials accountable promotes human rights and national security, rewards honest businesses, and is absolutely necessary to ensure a fair competitive environment for international commerce. These goals are in the best interest of the United States.

Stephen M. Kohn is the Founding Partner of Kohn, Kohn & Colapinto LLP. The author thanks Kohn, Kohn and Colapinto law clerks Geoff Schweller and Melissa Revuelta for their editorial and research assistance for this article.

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