NCJ Number
54816
Journal
Fordham Law Review Volume: 46 Issue: 6 Dated: (MAY 1978) Pages: 1071-1114
Date Published
1978
Length
44 pages
Annotation
REASONS FOR NOT CRIMINALIZING CORPORATE BRIBES OF FOREIGN OFFICIALS ARE EXAMINED.
Abstract
IN 1977 CONGRESS PASSED THE FOREIGN CORRUPT PRACTICES ACT, WHICH MAKES IT ILLEGAL FOR A COMPANY TO OFFER A FOREIGN OFFICIAL ANY KIND OF BRIBE. ALTHOUGH THE LAW EXCLUDES CLERICAL PERSONNEL AND 'GREASE' PAYMENTS (PAYMENTS THAT MOVE A MATTER TOWARD DECISION BUT DO NOT INVOLVE ANY DISCRETIONARY ACTION), IT GENERALLY MAKES FEW ACCOMMODATIONS TO THE REALITIES OF FOREIGN BUSINESS PRACTICES. THE MAXIMUM PENALTY UNDER THE LAW--$1 MILLION--IS ONE OF THE STIFFEST IN THE U.S. CRIMINAL CODE. A COMPARATIVE ANALYSIS OF LEGAL SYSTEMS IN THE UNITED STATES AND UNDER THE ISLAMIC, FRENCH, AND BRITISH TRADITIONS INDICATES THAT CONGRESS' BROAD-BASED CRIMINALIZATION APPROACH MAY HAVE BEEN UNWISE. IN THE UNITED STATES, GOVERNMENTAL POWER-EXECUTIVE OR LEGISLATIVE--IS NOT ABSOLUTE. BOTH CONSTITUTIONAL PROTECTIONS AND AN INDEPENDENT JUDICIARY WITH THE POWER OF JUDICIAL REVIEW EXIST TO CURB ANY ARBITRARY OR CAPRICIOUS EXERCISE OF GOVERNMENTAL POWER. BUT SUCH PROTECTIONS DO NOT NECESSARILY EXIST IN OTHER LEGAL SYSTEMS. CRIMINALIZING QUESTIONABLE PAYMENTS TO FOREIGN OFFICIALS MAY BE UNWISE FOR TWO REASONS: STRUCTURAL DIFFERENCES AMONG LEGAL SYSTEMS WILL MAKE IT DIFFICULT TO PROVE THAT PAYMENTS HAVE BEEN 'CORRUPTLY' MADE AND QUESTIONABLE PAYMENTS MAY ACTUALLY REPRESENT A MECHANISM OF COMPENSATION FOR THE LACK OF STRONG JUDICIAL AND CONSTITUTIONAL PROTECTIONS IN CERTAIN LEGAL SYSTEMS. OTHER STATUTES THAT BEAR UPON FOREIGN PAYMENTS BY CORPORATIONS--BRIBERY LAWS, THE BANK SECRECY ACT OF 1970, SECURITIES LAWS, ANTITRUST LAWS, TAX LAWS--ARE EXAMINED. THE POSSIBILITY IS RAISED THAT REGULATORY CONTROLS THAT EXISTED PRIOR TO PASSAGE OF THE FOREIGN CORRUPT PRACTICES ACT, IF CAREFULLY AND JUDICIOUSLY ENFORCED, MAY BETTER SERVE THE AMERICAN NATIONAL INTEREST IN DEALING WITH QUESTIONABLE PAYMENTS THAN WOULD THE CORRUPT PRACTICES ACT. THAT THERE ARE ISSUES (E.G., MORALITY) OTHER THAN COMPARATIVE LAW TO BE CONSIDERED IN THIS MATTER IS RECOGNIZED. (LKM)