Extractive (incl. oil & gas) - Written by on Monday, January 24, 2011 3:12 - 0 Comments

It’s the FCPA stupid: UK PLC already subject to draconian anti-bribery laws

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By Dick Cassin

Like the FCPA, the Bribery Act will be a great new weapon in the fight against corruption, a new line in the sand dividing right from wrong. But as Winston Churchill said, “The English never drew a line without blurring it.” And to be sure, some are already opposed to the Bribery Act.

They’re predicting dire consequences, as though the earth will open up and swallow a good chunk of British commerce, ruining the country’s ability to compete.

But that can’t be true. The United States already has a global anti-corruption law and it’s still competing. True, the American economy hasn’t been firing on all cylinders lately, but does anyone seriously blame the FCPA for that?

And have critics of the bribery act explained how attacking corruption makes businesses anywhere less competitive? Public corruption, let’s remember, is bad exactly because it distorts competition and guts the marketplace. Less corruption, then, equals more competitiveness. So the critics have it backwards.

Getting back to the FCPA, just how far does it reach? Everywhere would not be an exaggeration.

Last week, for example, Jeffrey Tesler, the London lawyer lost what’s probably his final appeal against extradition for FCPA-related offenses. He’s accused of helping KBR and its partners pay $180 million in bribes to Nigerian officials. Tesler’s lawyers have argued unsuccessfully that he’s a U.K. citizen and resident, didn’t work for a U.S. company, didn’t travel to the U.S. or commit any crimes on U.S. soil, didn’t maintain bank accounts there, and shouldn’t be subject to American justice.

The long arm of the FCPA has also been on display in corporate prosecutions. The U.K.’s BAE Systems plc pleaded guilty last year to lying about its FCPA compliance program, among other U.S. crimes, and paid a $400 million penalty.

Along with BAE, some of Europe’s best-known companies have been prosecuted for FCPA-related offenses, including Siemens (Germany), Snamprogetti (Italy), Technip (France), Daimler (Germany), Alcatel-Lucent (France), and Panalpina and ABB (both from Switzerland).

Is there any evidence the U.S. is less competitive today because of its global battle against public corruption? Not that I know of. But there’s plenty of evidence that companies subject to the Foreign Corrupt Practices Act are committing less bribery because of it, and that’s good for everyone.

Dick Cassin writes the FCPA Blog.

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