Document Type

Article

Publication Date

January 2015

Abstract

The United Scares legal system seeks to prevent and prohibit bribery and corruption through a myriad of laws, regulations and policies. Anti-corruption jurisprudence is more developed in the context of public sector contracts where the United States criminalizes bribery of public officials through 18 U.S.C. § 201 ( Bribery of Public Officials and Witnesses). In addition, the United States was the first country to criminalize bribery of foreign government officials in 1977 with the passage of the Foreign Corrupt Practices Act (FCPA). The FCPA has since been amended 10 comply wi1h the adop1ion of the OECD Conven1ion on Comba1ing Bribery of Foreign Public Official in International Business Tran sac1ions (the OECD Conven1ion). The FCPA does not have a private right of action, but FCPA invcs1igations and convic1ions have led to collateral civil actions and it is predicted that as FCPA prosecutions increase in number, such collateral FCPA actions will also continue to increase. There is no federal law prohibiting private sector bribery per se, but 37 states have enacted "commercial bribery" statutes that criminalize bribery and corruption on the state level. In addition, at the federal level there are a variety of criminal and civil statutes that allow private parties to address corruption, including, but not limited to mail and wire fraud statutes, securities and antitrust laws, and the Travel Act. Furthermore, federal government contracts can be voided under certain criminal conflict of interest statutes. Finally, there are contract law principles that have found utility in instances where a contract has been tainted due to actual bribery or potential breach of fiduciary duty, such as illegality, public policy and unclean hands.

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