Administrative Procedure and Foreign Antibribery Enforcement: Restoring Balance through Procedural Transparency

The Department of Justice and the Securities and Exchange Commission aggressively pursue and punish individuals and companies who bribe or attempt to bribe foreign officials in other countries pursuant to the Foreign Corrupt Practices Act of 1977 (FCPA). However, the FCPA as it is currently interpreted by the Department of Justice has been the object of growing criticism. The United States Chamber of Commerce has argued that good faith efforts to comply with the law are often unsuccessful and that statutory amendments are necessary to secure clarity with respect to enforcement policy. A year ago, the Department of Justice responded to this criticism by publicly commiting to release guidance on the FCPA\u27s criminal and civil enforcement provisions. Commentators argue that this guidance, if the Department ever issues it, is not likely to respond to the criticims of scholars and practitioners who oppose the current enforcement policy altogether. This Note finds that statutory amendments are necessary to require the DOJ to take notice of, and respond in a meaningful way to, the legitimate criticism of its current enforcement policy. This Note begins with an introduction to the text of the antibribery provisions, followed by a summary of two of the COC\u27s key criticisms of the FCPA as currently interpreted by the DOJ. It then examines the procedural law governing the DOJ\u27s enforcement policy formulation to demonstrate that the Department has consistently chosen the least transparent means to formulate its enforcement policy. Finally, the Note concludes by briefly comparing legislative and administrative developments in the United Kingdom surrounding that country\u27s UK Bribery Act 2010 as a potential procedural benchmark for Congress to better guide the DOJ procedurally in formulating its enforcement policy