Amara Maple
For three decades, the United States stood as the primary global enforcer of laws targeting corporations that bribed foreign government officials, primarily through its Foreign Corrupt Practices Act (FCPA). However, this long-standing dominance has progressively given way to a new paradigm: global FCPA settlements, a collaborative model of enforcement driven by multiple nations simultaneously prosecuting foreign bribery cases, often with the U.S. taking a leading role. This shift, characterized by blockbuster resolutions, predominantly deferred prosecution agreements (DPAs) with major multinational corporations, signifies a profound evolution in international anti-corruption efforts.
The Genesis of the FCPA and Early U.S. Enforcement
The Foreign Corrupt Practices Act, enacted in 1977, was a landmark piece of legislation. Its creation was a direct response to a series of egregious bribery scandals unearthed in the mid-1970s, most notably the Lockheed Corporation case, which revealed extensive payments to foreign officials to secure lucrative contracts. These revelations not only sparked outrage but also highlighted a critical gap in international law regarding corporate conduct abroad. The FCPA prohibited U.S. companies and individuals from bribing foreign government officials to obtain or retain business, and it also mandated strict accounting and record-keeping provisions to prevent off-the-books slush funds.
Despite its pioneering nature, enforcement of the FCPA remained relatively sporadic for its first two decades. As Duke Law Professor Rachel Brewster, author of the seminal law review article The Rise of Global FCPA Settlements, explained in a recent interview with Corporate Crime Reporter, it wasn’t until the late 1990s and early 2000s that the United States truly began to flex its muscles in FCPA enforcement. This period marked a strategic effort by the U.S. to establish a global framework for anti-bribery law.
This strategy unfolded in two key phases. First, the U.S. expanded the FCPA’s jurisdictional reach to include corporations listed on U.S. exchanges, regardless of their nationality. This move effectively leveled the playing field, extending the Act’s purview to many major foreign multinational corporations that competed directly with U.S. entities. The goal was to ensure that the FCPA was not merely applied to American corporations, but equally to their international rivals, thereby mitigating competitive disadvantages.
The second, equally crucial, phase involved a diplomatic push to persuade other major exporting nations to criminalize foreign bribery themselves. This effort culminated in the 1997 OECD Anti-Bribery Convention, a multilateral treaty that committed signatory countries to enact domestic legislation prohibiting the bribery of foreign public officials. The U.S. actively championed this convention, seeking to cement a global norm that foreign bribery was an illegitimate business practice and to secure the cooperation of partner nations in prosecuting their own corporate champions, such as Airbus or Odebrecht. This groundwork was essential, shifting the global perception of foreign bribery from a mere cost of doing business to a serious criminal offense.
The Ascent of Global Settlements: A New Era of Coordinated Enforcement
While the vast majority of FCPA cases continue to be prosecuted unilaterally by the United States—either by the Department of Justice (DOJ) alone or in conjunction with the Securities and Exchange Commission (SEC)—a significant transformation began to take shape in the latter years of the Obama administration, accelerating dramatically during the first Trump administration and continuing into the Biden years. This was the marked rise of global settlements.
These are not typically "joint prosecutions" in the strictest sense, where multiple governments simultaneously file a single, consolidated legal action. Instead, they are characterized by separate, parallel, or sequential prosecutions undertaken by numerous states. These states decide to investigate the same corporate misconduct, share information through established mechanisms of international legal assistance, and then each bring their own prosecution against the offending corporation. The "global" nature arises from the high degree of coordination among these prosecuting authorities, who actively communicate and align aspects of their respective resolutions.
A prime example of this coordination is the willingness of the United States to credit corporations for penalties paid to other states. Professor Brewster highlighted the Odebrecht case, a monumental bribery scandal, where the U.S. retained 10 percent of the penalties, Switzerland kept 10 percent, and Brazil received a substantial 80 percent. In this instance, the U.S. Department of Justice determined a total penalty amount based on its Sentencing Guidelines but strategically credited the majority of it to Brazil, recognizing that country’s significant jurisdiction over the underlying conduct. This crediting mechanism extends beyond financial penalties to other aspects of the resolution, such as the appointment and oversight of independent compliance monitors. The ability of the U.S. to coordinate effectively with other states on these complex issues has been a hallmark of this evolving enforcement model.
The statistical evidence underscores the prevalence of this new approach. Professor Brewster’s research reveals that out of the top ten blockbuster FCPA cases by settlement amount, eight were global settlements. Expanding the scope, fourteen out of the top twenty largest settlements also involved multiple jurisdictions. This trend indicates a clear shift from unilateral U.S. enforcement to a more interconnected, although informally structured, international system.
The Drivers of Coordinated Comity
The willingness of other states to invest significant resources in prosecuting foreign bribery, and the U.S.’s readiness to share penalty revenues, signals a deeper, evolving dynamic. Professor Brewster notes the historical context where other countries would often cede the field to the U.S., perhaps offering investigative assistance but not pursuing their own substantial prosecutions. This was a form of "negative comity," where one state refrains from exercising its jurisdiction out of deference to another.
The transition to what Professor Brewster terms "coordinated comity" reflects a new understanding of international cooperation. While there isn’t a single overarching multilateral organization or binding treaty dictating these specific enforcement protocols (beyond general frameworks like the OECD Convention or the UN Convention Against Corruption), a clear set of informal "rules of the road" has developed. These include understandings about when the U.S. will engage in global settlements, what these settlements should entail, and under what circumstances penalties will be credited to other nations.
Several factors motivated this shift. For other countries, engaging in their own prosecutions of foreign bribery allows them to assert national sovereignty, demonstrate a commitment to good governance, and recover illicit gains for their treasuries. It also provides a mechanism to hold their own corporate champions accountable domestically, rather than solely relying on U.S. enforcement. For the U.S., coordinated enforcement lends greater legitimacy to its extraterritorial laws, shares the investigative burden, and helps to foster a more robust global anti-corruption environment, ultimately reinforcing the international norm against bribery.
A critical development facilitating this coordination was the U.S. Department of Justice’s adoption of the "anti-piling on memo" during the first Trump administration. This formal policy allowed for the crediting of penalties paid to other jurisdictions, formalizing practices that had been explored on an ad-hoc basis in earlier global settlements. Crucially, this policy provided clarity and predictability for multinational corporations facing parallel investigations, incentivizing cooperation.
Furthermore, the rise of global settlements necessitated the development of compatible legal mechanisms in other countries. Historically, many jurisdictions required corporations to proceed to trial, a cumbersome and often impractical approach for complex transnational bribery cases. To facilitate global resolutions, countries like France, Germany, Switzerland, the United Kingdom, and Brazil developed their own equivalents of deferred prosecution agreements (DPAs) or plea bargain mechanisms for corporations. France, for instance, introduced the Convention Judiciaire d’Intérêt Public (CJIP), and the UK formalized its own DPA regime. These tools allowed for out-of-court settlements and resolutions that mirrored the U.S. model, making genuine international coordination possible.
A Shifting Tides: The Second Trump Administration’s Impact
The landscape of FCPA enforcement, however, remains dynamic and susceptible to changes in political priorities. As of March 2026, the hypothetical second Trump administration has signaled a potentially significant departure from the established trajectory of global anti-bribery cooperation.
According to Professor Brewster, this administration issued an early executive order suspending the application of the FCPA, followed by a new enforcement memo in June 2025. Notably, this memo does not discuss global settlements, and Professor Brewster notes that there have been no known global settlements under this administration, despite the "anti-piling on memo" apparently remaining unwithdrawn.
The core of this policy shift lies in its altered enforcement priorities. The new guidance indicates that the DOJ is now primarily interested in cases where bribery has demonstrably taken business away from U.S. companies. This marks a significant pivot from past enforcement, which sought to be even-handed, prosecuting both American and foreign corporations without explicit nationalistic bias. While foreign corporations have historically faced some of the largest FCPA penalties, studies cited by Professor Brewster confirm that American firms were statistically more likely targets of DOJ or SEC prosecutions. For example, an empirical study of FCPA resolutions from 1978 to 2018 found that 65% of all cases were brought against domestic firms. The perception of neutrality, where the U.S. pursued cases regardless of the nationality of the perpetrator, was crucial for fostering international cooperation.
This new emphasis on "vindicating the rights of American companies" creates a perception of bias, leading foreign governments to question their continued cooperation. As Professor Brewster articulated, "foreign governments are saying — 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 echoes past criticisms from countries, particularly France, which often labeled U.S. FCPA enforcement as "American industrial policy."
While foreign companies often receive larger penalties due to various factors—such as a lack of ingrained culture of cooperation with government authorities, leading to fewer cooperation credits, and lower rates of self-reporting—the perception of a nationalistic agenda threatens to unravel the carefully constructed framework of coordinated comity.
The Future of International Anti-Corruption Efforts
The implications of this shift are profound. Professor Brewster expresses skepticism that foreign law enforcement agencies will continue to cooperate as readily with the U.S. government on FCPA cases as they have in the past. If the U.S. is perceived as pursuing a biased agenda, the incentive for other nations to share sensitive information and resources diminishes significantly.
However, this does not necessarily mean a complete cessation of international anti-corruption efforts. While Professor Brewster doesn’t foresee other governments immediately stepping into a lead prosecutorial role where the DOJ previously dominated, there are signs of continued, albeit potentially redirected, international commitment. The announcement by the British, French, and Swiss governments of an international anti-corruption task force, designed to pool resources and support investigations, indicates a desire among some nations to maintain momentum, potentially independent of U.S. leadership.
Nonetheless, the broader impact of reduced U.S. engagement could be a decline in the overall global anti-corruption capacity. Many foreign countries initially ramped up their anti-corruption efforts and invested significant resources precisely because the United States was a strong leader, and because they wanted to ensure they had a role when their own corporations faced FCPA scrutiny. If the U.S. now appears to be pursuing fewer FCPA cases generally, or cases with a narrow nationalistic focus, other nations facing their own budgetary constraints may question the need to maintain the same level of investment. The anti-corruption offices may not be shut down entirely, but the impetus for growth and robust enforcement could wane.
The delicate balance of coordinated comity is now at a critical juncture. The U.S. historically played a pivotal role in establishing the global norm against foreign bribery and building a framework for international cooperation. Any significant retreat or perceived bias in its enforcement strategy risks fragmenting these efforts, potentially leading to a less cohesive and ultimately less effective global fight against corporate corruption. The future will likely see a more complex, multi-polar landscape, where regional alliances and individual national priorities increasingly shape the global response to transnational bribery.
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