Using Foreign Relations Law To Limit Extraterritorial Application of the Foreign Corrupt Practices Act

Abstract

Because the Foreign Corrupt Practices Act (FCPA) can be used to regulate conduct that has but a tangential connection to the United States, the statute exemplifies the potential difficulties of applying U.S. criminal law extraterritorially. The FCPA\u27s heightened enforcement environment and the norm of deferred-prosecution agreements that settle FCPA charges out of court combine to increase the probability that a foreign individual or firm will be prosecuted under the FCPA for bribery that occurred in and affected a foreign country. This Note proposes drawing from the presumption against extraterritoriality, a concept from foreign relations law, to find a reasonable limit to the territorial provision of the FCPA, which applies to foreign individuals and foreign companies that are not listed as issuers in the United States