The U.S. Foreign Corrupt Practices Act’s Extraterritorial Jurisdiction Expansion And Implications For China

The U.S.Foreign Corrupt Practices Act(FCPA)has been enacted since 1977 and has been amended twice to establish the principles of territorial jurisdiction and personal jurisdiction,extending jurisdiction extraterritorially.The territorial jurisdiction of the FCPA’s anti-bribery provisions extends to actors other than issuers and domestic entities whose bribes are paid in part or in whole in the United States.U.S.law enforcement agencies may exercise jurisdiction over extraterritorial bribery by issuers and domestic entities based on personal jurisdiction principles.Meanwhile,the U.S.has further expanded the jurisdiction scope of the FCPA through an expansive interpretation of the concepts of "foreign public official" and"bribery" in the anti-bribery provisions.Not only has the U.S.expanded its legislative jurisdiction,but enforcement agencies have also expanded their enforcement jurisdiction by establishing new enforcement trends.The increased enforcement of the FCPA has resulted in companies facing large fines as a sanction for being investigated in the United States.Chinese companies will be subject to the jurisdictional principles of the FCPA due to their listing in the United States.As U.S.enforcement agencies increase their investigations of Chinese companies and executives,Chinese companies face increased risk in the international community.There are currently many deficiencies in China’s governance of transnational commercial bribery crimes,mainly in the imperfection of criminal legislation and the sloppiness of the criminal justice system.Commercial bribery by multinational corporations in China is often the first to be investigated by foreign law enforcement agencies for disclosure.There is also a lack of jurisdiction over extraterritorial bribery offenses by Chinese companies.By comparing the jurisdictional status of transnational commercial bribery crimes in China and the United States and referring to the institutional design of the FCPA,we can provide lessons for China’s governance of transnational commercial bribery crimes.In the face of the expansion of the extra-territorial jurisdiction of the FCPA,it is necessary to propose countermeasures from both the state and enterprises to safeguard the legitimate rights and interests of China.In the context of promoting the construction of the extraterritorial application system of Chinese law,China can promote the extraterritorial application of China’s anti-corruption legislation,improve the transnational commercial bribery legislation and criminal jurisdiction system,and expand the scope of jurisdiction under the guidance of the legislative and law enforcement experience of the Anti-Foreign Corrupt Practices Act.In judicial practice,it is necessary to actively exercise jurisdiction over transnational commercial bribery cases occurring in China and involving China’s enterprises,strengthen international coordination and cooperation,and enhance the governance of transnational commercial bribery crimes.