COMPARING FRENCH AND AMERICAN ANTI-CORRUPTION LAWS: SAPIN 2 AND THE FCPA
There is a continued rise and increased stringency of anti-corruption enforcement around the world. The US gave an undeniable momentum to repressing corruption with the adoption of the Foreign Corrupt Practices Act (FCPA) in 1977, encouraging unprecedented international cooperation throughout the years. As the benchmark of anti-corruption regulations, the extensive enforcement of the FCPA’s anti-bribery provisions by US authorities inspired, amid a plethora of anti-corruption legislation, the French Sapin 2 law.
Prior to the adoption of this law in 2016, Michel Sapin and the Organisation for Economic Co-operation and Development (OECD) deplored the low conviction rate of companies by the French judiciary for bribery of foreign public officials since the creation of this offence in France in 2000. Convictions for this offence between 1999 and 2014 amounted to 150 in the US versus just seven in France. Incidentally, the 2014 Alstom case pressed France to considerably reinforce its corporate anti-corruption framework.
Alstom SA, a French power and transportation company, pleaded guilty and payed a $772m fine while one of its French senior executives was imprisoned in the US, in relation to alleged bribes paid to foreign government officials. The stakes of the French law were high: preserving the sovereignty of the national criminal system and maintaining law and order in corporate affairs.
With the diversification of extraterritorial anti-corruption laws, companies are forced to recognise the fast-growing national and international scrutiny of their compliance programmes and to strengthen these programmes to mitigate the increased legal risks they face. Understanding and comparing the requirements of French and US anti-corruption legislation, arguably among the most strict and extensive laws in the field of compliance, is essential to gauge these risks.
Jan-Mar 2021 Issue
Dana Ghandour