Already in the past years, a high proportion of FCPA enforcements resulted from corporate enforcement actions against foreign companies, i.e., companies having their registered office outside the USA. In 2021, even all companies which resolved 2021 FCPA enforcement actions were from foreign countries (Germany, United Kingdom, and Switzerland): i) the German financial institute Deutsche Bank was accused of having interacted with  alleged foreign officials in Abu Dhabi and Saudi Arabia; ii) the British project management company Amec Foster Wheeler was accused of having interacted with alleged foreign officials in Brazil; iii) the British media and PR company WPP was accused of having interacted with alleged foreign officials in India, China, Brazil and Peru; and iv) the Swiss company financial institute Credit Suisse was accused of having interacted with  alleged foreign officials in Mozambique.

All these 2021 FCPA enforcement actions were against companies headquartered in countries that, like the U.S., are parties to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Convention). Given this reality, as well as the specific provision in Art. 4 of the OECD Convention stating that “when more than one Party has jurisdiction over an alleged offence described in this Convention, the Parties involved shall, at the request of one of them, consult with a view to determining the most appropriate jurisdiction for prosecution,” the question arises as to whether U.S. authorities have an appropriate jurisdiction to prosecute these foreign companies for alleged interactions with non-U.S. officials. A recent article explores this question and finds that perhaps – with the maturity of the OECD Convention – the time has come for U.S. enforcement agencies to adopt a policy of not bringing FCPA enforcement actions against foreign companies from peer OECD Convention countries.