The extraterritoriality provision of the FCPA derives its same legal justification as that of extraterritorial taxation — “substantial and purposeful availment” of US interstate commerce. The reasoning being is that if an overseas company is listed as a traded security, then you are acceding to the fair dealing and anti-bribery provisions, including jurisdiction for principals committing crimes.
I think the criminal provisions are an overreach in most instances, for sure. But I tend to have a limited view on the Constitution, and think that nothing in the document was meant to provide for the vast, federalized policing powers that we’ve allowed to metastasize over the last century.
But the financial penalties? That 100% makes sense and there is a clear nexus. You can’t boost the balance sheet and realize gains in the US by overseas corruption. And by contracting to list on the NYSE, or substantially and purposively availing itself of the market, a company agrees to that. Makes perfect sense.
This whole Alstom thing is crazy.
But hey, it smells like Karma anyway, considering GE’s difficulties they will certainly sell their nuclear activities to EDF well below the purchase price. But the damage is there, with many jobs lost and activities closed. It was looting.
To be fair, doesn’t the EU do the same thing to non-EU companies that are doing business in the EU?
If used properly this seems like a good thing to me. Companies behaving badly often go unpunished, so it’s good that there are strong penalties to corruption.
This will inevitably happen. Films are being censored across markets to meet Chinese expectations of propriety. Extraterritorial outreach (legal or not) will always be a privilege for (very) big economies like the US, China and even the EU (when united).
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The extraterritoriality provision of the FCPA derives its same legal justification as that of extraterritorial taxation — “substantial and purposeful availment” of US interstate commerce. The reasoning being is that if an overseas company is listed as a traded security, then you are acceding to the fair dealing and anti-bribery provisions, including jurisdiction for principals committing crimes.
I think the criminal provisions are an overreach in most instances, for sure. But I tend to have a limited view on the Constitution, and think that nothing in the document was meant to provide for the vast, federalized policing powers that we’ve allowed to metastasize over the last century.
But the financial penalties? That 100% makes sense and there is a clear nexus. You can’t boost the balance sheet and realize gains in the US by overseas corruption. And by contracting to list on the NYSE, or substantially and purposively availing itself of the market, a company agrees to that. Makes perfect sense.
This whole Alstom thing is crazy.
But hey, it smells like Karma anyway, considering GE’s difficulties they will certainly sell their nuclear activities to EDF well below the purchase price. But the damage is there, with many jobs lost and activities closed. It was looting.
To be fair, doesn’t the EU do the same thing to non-EU companies that are doing business in the EU?
If used properly this seems like a good thing to me. Companies behaving badly often go unpunished, so it’s good that there are strong penalties to corruption.
This will inevitably happen. Films are being censored across markets to meet Chinese expectations of propriety. Extraterritorial outreach (legal or not) will always be a privilege for (very) big economies like the US, China and even the EU (when united).