One of the issues businesses that operate internationally have to deal with is the varying laws and policies across different nation states. The United States for instance has the Foreign Corrupt Practices Act(FCPA) which is a law passed in 1977 listing prohibitions against bribery by U.S. businesses and individuals to foreign entities in a bid to promote and secure business deals. The law is also applicable to non-American businesses listed on US stock exchanges or have operating subsidiaries in the United States. Much as the FCPA seeks to curb illicit practices in furthering international business deals, the law interestingly does not make provisions to deter foreign entities from demanding or accepting bribes as conditions to further business deals with US businesses and individuals. The one-sided nature of the FCPA seems to hold only US businesses and individuals accountable when it comes to bribery but cannot be used against foreign officials on the receiving end of the bribery.

Following a push to rectify this loophole in the FCPA, the United States Congress introduced a bill in 2019 to remedy the flaws of the FCPA. Dubbed the Foreign Extortion Prevention Act, this new bill sponsored by United States House Representative Sheila Jackson Lee of the 18th District of Texas, seeks to provide legislation expanding the prohibition of bribery to cover solicitations made by foreign officials who make such demands during international business dealings. 

Although the FCPA is limited in its scope of prohibition of bribery to US companies and individuals offering it, courts in the United States have reaffirmed its validity over the years: "In United States v. Castle, a 1991 decision, the United States Court of Appeals for the Fifth Circuit found that two Canadian officials could not be prosecuted for a conspiracy to violate the F.C.P.A. because Congress exempted foreign officials. In United States v. Hoskins, a 2018 ruling, the federal appeals court in Manhattan held that a foreign national who was never in the United States could not be prosecuted under the foreign bribery law because “Congress did not intend for persons outside of the statute’s carefully delimited categories to be subject to conspiracy or complicity liability.” "

The bill for Foreign Extortion Prevention Act which is currently feferred to the  Subcommittee on Crime, Terrorism, and Homeland Security of the US House Judiciary, is supported by both Democrats and Republicans in Congress. This bill if passed, would make it easier for the Justice Department in the United States to pursue foreign officials who solicit bribes during business deals without having to make a connection to the United States outside of payments made by US businesses or individuals.

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  • This is certainly a challenging international law question applying first the principle of territoriality by which a country is 'free' to regulate within its own territory. And then, we have the issue of international juridiction, in particular the nationality principle, territoriality principle, or yet the protective principle. The first one allows a country to adopt criminal laws to its nationals outside of the country's borders, the second allows prosecution of any entities within its borders, and the third allows a country to assert juridiction over a person outside of the country over his/her behavior as a threat to national security. So, it'd interesting to see how this Bill will go...

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