The Evolving Landscape of Anti-Bribery Enforcement: From Unilateral Dominance to Coordinated Comity and Beyond

For the past three decades, the United States has stood as the preeminent enforcer of laws targeting corporations that bribe foreign government officials. However, in recent years, this established dominance has been increasingly challenged and reshaped by a new enforcement paradigm: global Foreign Corrupt Practices Act (FCPA) settlements. These landmark resolutions are the culmination of multiple governments simultaneously prosecuting corporations for foreign bribery, typically with the United States initially taking a leading role. The outcomes are often blockbuster agreements, predominantly deferred prosecution agreements (DPAs) involving major multinational corporations, marking a significant shift in international legal cooperation.

Duke Law Professor Rachel Brewster, a leading authority on the FCPA, sheds light on this transformative period in her latest law review article, "The Rise of Global FCPA Settlements." Brewster’s extensive research, including prior works exploring the United States’ vested interest in enforcing the FCPA, provides crucial context to the current evolution. She notes that while the FCPA has been codified since 1977, its rigorous enforcement by the United States truly commenced in the late 1990s and early 2000s, initiating a multi-pronged strategy to cultivate a global system of anti-bribery enforcement.

The Genesis of Global Enforcement: A US-Led Initiative

Brewster highlights two primary components of the United States’ initial strategy to globalize FCPA enforcement. The first involved a strategic expansion of the FCPA’s jurisdiction. By including corporations listed on US exchanges, the jurisdictional reach extended to encompass a vast majority of major foreign multinational corporations that competed directly with US entities. This move was designed to "level the playing field," ensuring that the FCPA applied not solely to American corporations but also to their international rivals, thereby mitigating competitive disadvantages for compliant US firms.

The second, equally critical, piece of the strategy focused on garnering international consensus. The US endeavored to persuade other major exporting nations to criminalize foreign bribery and to cement the norm that such practices were illegitimate business conduct. This sought to foster a global commitment where partner nations would be willing to assist in prosecuting their own "national corporate champions," citing high-profile cases like Airbus and Odebrecht as examples of such cross-border cooperation. These early efforts laid the groundwork for a more collaborative, albeit often US-driven, international anti-corruption framework.

From Unilateralism to "Coordinated Comity"

For many years, the vast majority of FCPA cases remained unilaterally prosecuted by the United States. This meant that the Department of Justice (DOJ) alone, or sometimes in conjunction with the Securities and Exchange Commission (SEC), initiated actions against corporations for FCPA violations. While these cases inherently possessed a transnational dimension, given that bribery occurred overseas, critics often decried the FCPA’s enforcement as not only extraterritorial but also distinctly unilateral, with the United States enforcing its laws without significant parallel action from other sovereign nations. This period, characterized by the US shouldering the primary burden of enforcement, has been termed "negative comity" in legal scholarship, where other nations largely ceded the field to American prosecutors.

However, a discernible shift began to emerge in the latter part of the Obama administration, gaining substantial momentum during the first Trump administration (2017-2021) and continuing into the Biden administration. This period witnessed the pronounced rise of global FCPA settlements. These were not typically joint prosecutions in the strictest sense, but rather separate, parallel, or sequential investigations undertaken by numerous states. These jurisdictions would collaboratively decide to investigate a particular corporate entity, share information, and subsequently bring their own distinct prosecutions.

The coordination inherent in these global settlements manifested in various ways. States engaged in dialogue, aligning aspects of their resolutions. A prominent example is the willingness of the United States to credit corporations for penalties paid to other states. The Odebrecht case, a watershed moment in international anti-bribery enforcement, exemplifies this coordination. In that resolution, the US retained 10 percent of the penalties, Switzerland kept 10 percent, and Brazil received a substantial 80 percent. The DOJ explicitly stated that while the Sentencing Guidelines dictated a specific penalty amount, the majority would be credited to the Brazilians, demonstrating a tangible commitment to burden-sharing. Coordination also extended to oversight mechanisms, such as determining whether a US or a Brazilian monitor would supervise the corporation’s compliance post-settlement. This level of cooperation allowed the United States to effectively coordinate with other sovereign states, marking a significant departure from its earlier unilateral approach.

The impact of this shift is empirically striking. Professor Brewster’s research reveals that out of the top ten largest FCPA settlement amounts, eight were global settlements. Expanding this scope, fourteen out of the top twenty largest settlements also involved multiple jurisdictions. This data underscores the growing prevalence and financial magnitude of these coordinated international efforts.

Brewster finds the willingness of other states to become actively involved, investing significant resources, particularly intriguing. Previously, a "delegation model" often prevailed, where other countries might assist US investigations but refrained from committing their own substantial resources. The transition to active participation and the US willingness to credit penalties to foreign treasuries, rather than exclusively to the US Treasury, raises fundamental questions about the nature of evolving informal global cooperation. While no equivalent of a formal OECD or UN Convention Against Corruption treaty directly governs these specific settlements, informal "rules of the road" appear to be developing regarding the criteria for US engagement in global settlements, their desired structure, and the conditions under which penalty credits are extended. This emerging framework has been aptly described by Brewster as "coordinated comity," representing an understanding among nations that, despite the absence of formal treaty obligations, a system of informal cooperation and mutual respect is being established.

Catalysts for Change: Policy and Legal Innovations

Several factors facilitated this evolution. Domestically, the DOJ, under the first Trump administration, adopted the "Anti-Piling On Memo" in 2018, which formally articulated the policy of crediting penalties paid to other jurisdictions. This memo, in essence, formalized earlier experimental approaches to global settlements, providing a clearer framework for multi-jurisdictional resolutions.

Concurrently, a critical development occurred internationally: other countries adapted their legal systems to enable mechanisms akin to deferred prosecution agreements (DPAs) or guilty pleas for corporations. Historically, in many jurisdictions, corporations had to proceed to trial, a process ill-suited for the complex, expedited nature of global settlements. Nations such as France, Germany, Switzerland, the United Kingdom, and Brazil, among others, developed their own versions of DPA-like instruments, often referred to as "corporate criminal agreements," "judicial conventions of public interest," or similar non-trial resolution mechanisms. This institutional convergence was instrumental in making global settlements practically feasible, allowing for harmonized resolutions across diverse legal frameworks.

The Shifting Sands: The Trump 2 Administration and Future Uncertainties

As of March 2026, the landscape of FCPA enforcement, particularly regarding international cooperation, faces new challenges under the current (hypothetical) Trump 2 administration. Professor Brewster notes a distinct shift in approach. An early executive order reportedly sought to suspend aspects of FCPA application, followed by a new enforcement memo issued in June 2025. Significantly, this memo makes no mention of global settlements, and as far as Brewster is aware, no such settlements have materialized under the current administration. While the "Anti-Piling On Memo" has not been formally withdrawn, its practical application appears to have diminished.

There is a growing consensus that the Trump 2 administration is scaling back FCPA enforcement. This pullback raises critical questions about whether other governments will step into the void and assume a lead prosecutorial role, a function historically dominated by the DOJ. Brewster expresses concern that the new enforcement guidance is "problematic to international cooperation." The revised guidance reportedly emphasizes cases where companies have unfairly taken business from US companies through bribery. This shift, focusing on "vindicating the rights of American companies to overseas contracts," marks a notable departure from past enforcement policies.

Historically, both the DOJ and the SEC strived for an even-handed approach, prosecuting both American and foreign corporations, despite some of the largest monetary awards often being levied against foreign entities. They actively emphasized their non-nationalistic stance, asserting that cases were brought irrespective of corporate nationality. This perceived impartiality was crucial for fostering global settlements, as foreign companies were more willing to cooperate with US investigations when they believed the US was acting neutrally.

However, the Trump 2 administration’s explicit emphasis on prosecuting companies that disadvantage American corporations introduces a perceived bias. Foreign governments are now questioning the rationale for their cooperation, asking, "Why should we help you with investigations, why should we coordinate with you? All we are doing is helping you promote American companies against foreign companies." This sentiment risks eroding the trust and goodwill painstakingly built over years of "coordinated comity."

The "American Industrial Policy" Debate Revisited

The argument that US FCPA enforcement sometimes functions as "American industrial policy" is not new. Foreign countries, particularly France, have historically voiced this criticism, especially when their national champions found themselves in the crosshairs of the DOJ. While foreign nations were understandably apprehensive when their companies faced US scrutiny, the DOJ consistently brought cases against numerous American companies, counterbalancing this perception.

Empirical studies support this historical balance. Professor Brewster cites research on FCPA resolutions from 1978 to 2018, which found that 65% of all cases were brought against domestic (US) firms. However, it remains true that the largest penalties have disproportionately been levied against foreign corporations. Several factors contribute to this disparity. Foreign firms often lack a deeply ingrained culture of cooperating with government investigations, unlike many US firms. Consequently, they may refuse to cooperate or self-report at significantly lower rates, leading to fewer cooperation credits and, ultimately, much higher penalties when the DOJ does pursue them.

Implications for International Cooperation and the Future of Anti-Corruption

Given the Trump 2 administration’s policies, Brewster anticipates a decline in cooperation between foreign law enforcement agencies and the US government on FCPA cases. This stands in stark contrast to the robust cooperation observed in previous administrations. The consequences of this potential decoupling are significant.

In a proactive response to the shifting global landscape, the British, French, and Swiss governments have announced the formation of an international anti-corruption task force. This initiative signals a strategic move to pool resources and bolster anti-corruption investigations independently of US leadership. It suggests a potential diversification of international enforcement hubs, where key European nations may increasingly drive multi-jurisdictional efforts.

However, a broader concern articulated by Brewster is the potential for a reduction in overall anti-corruption investment by other nations. Many foreign countries initially increased their anti-corruption resources because the United States was a clear leader, and they sought to maintain relevance and influence if the FCPA was invoked against their corporations. If the US now signals a reduced commitment to FCPA cases across the board, these countries might conclude they no longer need to invest at the same level. While established anti-corruption offices are unlikely to be entirely dismantled, budget crises and competing priorities could lead to a stagnation or even reduction in funding for anti-corruption capacity building, potentially weakening the global fight against bribery at a critical juncture.

The evolving environment presents a complex future for corporate compliance and international legal cooperation. Companies operating globally may face a more fragmented enforcement landscape, requiring vigilance regarding the distinct priorities and mechanisms of various national authorities. The long-term implications for curbing foreign bribery will depend heavily on whether other nations fully step into the leadership vacuum created by a retreating US, or if the global momentum built over decades begins to wane, leaving more room for illicit practices to thrive. The narrative of anti-bribery enforcement continues to be written, with its next chapters promising to be as dynamic and challenging as its past.