The FCPA In BRIC Countries: 2011 Enforcement Trends In Emerging Markets

Author:Ms Obiamaka Madubuko and Michael S. Stanek
Profession:McDermott Will & Emery
 
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In the coming decade, developing BRIC (Brazil, Russia, India and China) economies will continue to expand while becoming further intertwined in the global economy. Attractive as potential investment opportunities in BRIC may be, U.S. and multinational companies need to remain vigilant to the potential corruption risks of doing business in these emerging markets. It is apparent that BRIC-based entities will become increasingly subject to U.S. FCPA enforcement in coming years, while emerging market governments are increasingly willing to piggyback off U.S. enforcement actions, and cross-border cooperation will increase in enforcing anti-bribery laws.

In the spring of 2010, market observers decided this is BRIC's decade. BRIC is shorthand for Brazil, Russia, India and China, the world's fastest growing emerging markets. Between 2000 and 2010, BRIC (and the sometimes included South Africa) had contributed more than one-third of the world's gross domestic product (GDP) growth, and increased from one-sixth to one-fourth of the world economy in purchasing power parity (PPP) terms (BRICs Monthly, Issue No. 10/03, May 20, 2010, available at http://www2.goldmansachs.com/ideas/brics/brics-decade-doc.pdf). Their middle classes increased in exponential terms as foreign companies entered into, and domestic companies grew from, BRIC markets. In the coming decade, these economies will continue to expand while becoming further intertwined in the global economy. By 2030, it is estimated that 60 percent of the world's GDP will come from BRIC countries.

Attractive as the potential investment opportunities in BRIC may be, U.S. and multinational companies need to remain vigilant to the potential corruption risks of doing business in these emerging markets. The U.S. Securities and Exchange Commission (SEC), U.S. Department of Justice (DOJ) and other global law enforcement agencies such as the UK Serious Fraud Office (SFO), have all recently ramped up enforcement against bribery and corruption around the globe, but especially in these emerging markets. Companies found in the crosshairs of a government investigation often choose to settle these charges out of court and pay hefty fines and penalties instead of leaving themselves open to the uncertainty of taking their cases to trial. U.S. law enforcement is also increasingly targeting individuals for prosecution for violations of the Foreign Corrupt Practices Act (FCPA) and jail sentences for culpable...

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