Eliminating Schmiergeld: Lessons Learned from the Enforcement of Foreign Anti-Bribery Laws in the United States and Germany
Written By: Jesse Van Genugten
Responsible for nearly seventy-five percent of the world’s foreign anti-bribery sanctions imposed since the turn of the century, Germany and the United States have emerged as global leaders in the fight against cross-border business corruption. The legal frameworks enabling that active enforcement, the U.S.’s Foreign Corrupt Practices Act (FCPA) and Germany’s Gesetz zur Bekämpfung internationaler Bestechung, provide contesting legislative blueprints for eradicating bribery in the solicitation of international business contracts. This Note argues that specific aspects of the U.S. anti-bribery regime should be incorporated into Germany’s system, and vice-versa, to strengthen the enforcement and deterrent capacities of the systems in place. The United States should, mirroring German procedure, increase judicial oversight of its criminal and civil sanctions, reduce the prosecutorial discretion inherent in its approach to anti-bribery indictments, and criminalize the use of “grease-payments,” or facilitation payments. On the other hand, Germany should, taking a page from the U.S. book, introduce criminal liability for corporations, provide whistleblower protections, launch an incentive program for whistleblower disclosures that lead to successful prosecutions, and publicly report anti-corruption sanctions to deter future foreign bribery. These recommendations can serve as a wider paradigm for balancing prosecutorial activism with domestic business interests and competitiveness—as both the United States and Germany have sought to do.