Duke University School of Law, Durham, North Carolina | 21st April 2017
The US Supreme Court overturned in June 2016 a corruption conviction for former Virginia Governor Bob McDonnell, who stands accused of receiving gifts and loans from a private sector corporation. Specifically, the Supreme Court had to rule on when a public servant actually performs an 'official act' and what constitutes an official act. In justifying its decisions, the Court also noted that people must have fair notice of what conduct is criminal and what is lawful (which is in line with the principle of legal certainty). The Department of Justice on September 8 announced that it is not going to retry the former Governor and his wife.
There is consensus that the decision of the Supreme Court will likely make the prosecution of corruption harder to achieve by questioning what constitutes public sector corruption. But this case also casts doubts over how it could affect use of the FCPA to prosecute corruption overseas. Will this new definition limit the theories of foreign corruption put forward by the Department of Justice (DoJ) and the Securities and Exchange Commission (SEC)? Will more corporate defendants be willing to go to trial on corruption charges and thereby lead to more judicial interpretation of the statute?
There are also a number of questions relating to what a Trump administration mean for the future of anti-corruption, enforcement of anti-bribery in the US and internationally. During the campaign, Trump claimed that the FCPA is a "horrible law and it should be changed" and that it puts American businesses at a "huge disadvantage" (see here)
So, there is some uncertainty over the extent to which the new administration will change government policy in this area. Can enforcement of the FCPA be above politics, and what is the role of politics in changing FCPA enforcement policy? If changes are to be expected, what would this mean for jurisdictions like the United Kingdom, Switzerland, or Australia? Will the UK Birbery Act lead in the international prosecution of corruption if the FCPA is weakened or even repealed? Likewise, what will the US' relation with foreign jurisdictions look like? What would the US' attitude towards international conventions such as the OECD Bribery Convention be?
This roundtable discussion, convened by the Global Rule of Law Exchange at the Bingham Centre for the Rule of Law (United Kingdom), The Center for International and Comparative Law at Duke Law School, and with the support of Jones Day, intends to discuss the significance of both the Bob McDonnell case and the Trump administration for the future of anti-corruption in the US and internationally.
This blog investigates the tension between fighting corruption and respecting the rule of law, taking Brazil as an example. ...