Negotiating Bribery: Toward Increased Transparency, Consistency, and Fairness in Pretrial Bargaining Under the Foreign Corrupt Practices Act
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This article will explore the factors that contribute to less-than-optimal transparency, consistency, and fairness in pre-trial bargaining under the Foreign Corrupt Practices Act. The article will conclude with recommendations to strengthen the current system and make it more fair. The article is divided into four Parts: Part I will discuss the extent of the bribery problem worldwide; the history of the FCPA; and the reasons behind the recent dramatic increase in FCPA enforcement. Part II will discuss the elements that make up FCPA jurisprudence given that so few cases are litigated in court; the history of using DPAs and NPAs to address corporate wrongdoing; and the development of the guidelines and principles underlying DOJ prosecutors charging decisions with respect to corporate law enforcement. Part III will delve more deeply into the guidelines underlying DOJ prosecutors charging decisions, questioning if recent steps taken by DOJ have mistakenly led to a decrease in procedural protections offered by the Department to parties accused of corporate wrongdoing, thereby resulting in increased negotiation power imbalances. This Part will also consider whether a corporate compliance defense similar to that enacted in the United Kingdom would be an appropriate and effective way to counterbalance DOJs superior negotiation power in the FCPA context. Finally, this Part will discuss potential consequences of increasing judicial review within the DPA and NPA negotiation and implementation processes. Part IV will discuss possible solutions to the overall dilemma posed by the article, namely, how to increase transparency, consistency, and fairness in pre-trial negotiations between DOJ and parties accused of FCPA violations.
