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Tuesday, April 30, 2013

The FCPA Contra the ATS: in Conclusion

The best laid plans . . . I might have liked to get a couple more posts in this month, but alas.  So let me conclude my series on the ATS vis-a-vis the FCPA with a few quick thoughts.

First, I suggested in prior posts that we should think of bribery (and corruption) as an inherent human rights violation.  Definitely some pushback there.  But you need not buy that claim to nonetheless see the FCPA as a rights tool.  I think we can all agree that bribery is very closely related to rights already recognized in our international instruments:  the right to equal protection, to political representation, to self-determination, to food, housing, and medical care, to education, to equal access to a country’s public services, to safe working conditions, to the control of natural resources, and indeed to the rule of law itself.  If we want to keep corporations from violating these rights, the FCPA is a pretty good way to go about it.

Comparing the FCPA to the ATS, one may object that the former statute cannot really touch the egregious violations that we’ve used the ATS to address, such as torture or genocide.  That’s probably true.  But though the rights violations I listed above are less egregious, they are also more pervasive and systematic, touching the lives of the vast majority of the world’s population.  I’d suggest that this is every bit as meritorious a focus of our federal human rights laws.

Finally, in terms of statutory drafting, the FCPA is so many things that the ATS never was.  It provides a clear cause of action, supported by an accessible legislative history.  It rests on well-established common law principles of corporate liability.  Its claim to extraterritorial application is utterly uncontroversial, Congress having clearly expressed therein its intent.  And as if this weren’t enough, FCPA enforcement has produced a robust transnational culture of corporate compliance, almost certainly altering the ways both US and foreign corporations conduct themselves overseas.  Were we to redraft the ATS we might use the FCPA as a sort of template.  But of course, that ain't gonna happen.

 So instead, here's hoping that international law scholars might, in the post-Kiobel world, more fully appreciate the potential of anti-bribery law as a tool for deterring overseas corporate human rights violations.  And with that, I'll bid you adieu.  Thanks for listening.

Posted by Andy Spalding on April 30, 2013 at 08:39 AM | Permalink


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