Note

Cross-National Patterns in FCPA Enforcement

  

Nicholas M. McLean [View as PDF]

121 Yale L.J. 1970 (2012). This Note undertakes an empirical examination of U.S. enforcement actions under the Foreign Corrupt Practices Act (FCPA) in order to explore the cross-national patterns associated with the United States’ international antibribery enforcement. I investigate a number of possible determinants of FCPA enforcement, including variation in the level of U.S. foreign direct investment (FDI), cross-national variation in corruption levels, the level of foreign regulatory and enforcement cooperation with the United States, and U.S. foreign policy interests. I find that higher levels of U.S. FDI and higher levels of corruption are significantly associated with increased FCPA enforcement, as is the presence of bilateral mechanisms of enforcement cooperation. In contrast, other variables—including the level of foreign policy alignment between the host nation and the United States—do not appear to be associated with variation in FCPA enforcement. In addition, I find that cross-national variation in the number of FCPA cases in a given country is much more closely associated with actual recorded experience with corruption (as measured by cross-national survey instruments) than with more widely used measures of corruption perceptions. Finally, I employ data on past enforcement actions to generate a cross-national measure of the “FCPA enforcement-action intensity” of U.S. FDI, and I consider the potential use of such an index as a measure of FCPA country risk.