Research On The FCPA Extraterritorial Jur Isdiction

This Article researches on the FCPA extraterritorial jurisdiction in hot discussion recently,combined with international law theory and practice,to explore its rationality and legality.The Act came in force in 1977 and witnessed its enforcement explosion from 3-5 cases per year to forty-some per year in the post-2010 era,among which the exterritorial jurisdiction is frequently exercised.Some enforcements are related to Chinses officials or Companies registered pursuant to Chinese Law,or the bribery mainly implemented and finished in the territory of China.China is a signatory of The United Nations Convention against Corruption(UNCAC).To implement its obligation under UNCAC,the 8th revision of the Chinese Criminal Code introduced the penalty against the payment of bribery to foreign government officials and officials of public international organizations,although we haven't seen any of its enforcement as of the date of this Article.To analyze the interpretation of the FCPA extraterritorial jurisdiction on legislative,administrative and judicatory perspectives will provides a sophisticated insight over its legal basis,to strike a balance in the play field of anti-corruption cooperation.This article consists of three parts,the introduction,body,and conclusionChapter 1 introduced US congress' attitude toward the FPCA extraterritorial jurisdiction,as well as how DOJ and SEC,and the court interpret and apply FCPA,demonstrating the FCPA jurisdiction map for further analysis.Section 1 showed the social and economic background against which the FCPA came into being,the focus of FCPA,and the concern expressed by American business society that FCPA makes US companies less competitive.Section 2 looks in to the legislation process as well as the 1998 revision,showing that the 1977 US Congress is reasonably restrain and conservative in respect of the extraterritorial jurisdiction or application.However,the 1998 revision deleted such restriction article as in the 1977,leaving 78dd-1(a)a prohibition article with some space for interpretation.The jurisdiction shown in 78dd-1 and 78dd-2 slightly deviates from the typical and accepted concept of jurisdiction,which is mainly reflected in the "issuer" being the subject of FCPA,the use of "mails or any means or instrumentality of interstate commerce corruptly" being the outside manifestation,and the agent principle.At least when it concerns criminal proceedings,it stretches over the line set out in the OECD anti-corruption convention.The third section introduced FCPA's aggressive enforcement,including the rocketing number of cases,selected punishing targets,the utilization of NPA and DPA which leads a lack of transparency and justice and threat the company under duress to make a plea,also a tendency to over interpret the text and expand FCPA jurisdictionChapter 2 focuses on the development of international theories and the difference between jurisdiction divisions,and based on the specialty of FCPA's extraterritorial jurisdiction compared with other statues,discusses its legality and rationality.Section 1 discusses the different ways to divide and define jurisdiction,and define the"extraterritorial jurisdiction" as a combination of legislative,administrative and adjudicate jurisdiction,noting that the three kind of jurisdiction are differently limited under international law.At the same time,the FCPA jurisdiction is also dividable and multi-dimensional to include criminal jurisdiction and administrative jurisdiction,limited legislative jurisdiction and out-of-controlled enforcement jurisdiction.Section 2 identifies that the extent of the jurisdiction is different between criminal and administrative case.Maintain a criminal jurisdiction as wide as administrative one is unreasonable as FCPA cases demonstrated.Section 3 discusses the mismatch between the legislative jurisdiction and enforcement jurisdiction,and analyzes in the international law theory the transformation from an unlimited jurisdiction to a modernized jurisdiction concept.It also analyses the "presumption against extraterritoriality" emphasized in the Morrison v.Nat'l Austl.Bank Ltd.,reinforcing the conclusion that extraterritorial restriction exercised by US judicial branch is a very nominal but hollow oneChapter 3 works on the current international convention and international cooperation,and concludes that the international convention as a source of International Law is very general on the aspect of jurisdiction.It expands the legislative jurisdiction at a relatively large level,and minimize the gaps in the fight against transnational bribery.It is pointed out that signatories should activate the jurisdiction clauses more to deal with the problems shown from the current anti-bribery practice.It would also be meaningful to protect the defendant's basic right with due diligence.Section 2 introduced the recent legislation on foreign briery in China,Briton and France and their enforcement actions,and pointed out that these legislations are in the premier phase without any knowledge how good it works.Section 3 put forward suggestions to counterbalance the effect of FCPA extraterritorial jurisdiction.