On February 10, 2025, President Trump issued an executive order directing the Attorney General (AG) to pause investigations and enforcement actions brought under the Foreign Corrupt Practices Act (FCPA) for 180 days, subject to exceptions granted by the AG.
What does this mean for businesses operating in the US and globally? See the thoughts of our US colleagues here. In summary, companies should not overread the implications of this executive order. The FCPA is not dead, and companies do not have free rein to bribe foreign government officials. The AG can authorize new investigations during the review period. Nor is there a safe harbor for conduct committed prior to the issuance of the new guidelines. Most conduct chargeable under the FCPA will also constitute crimes under other laws, such as the very broad US wire fraud statute, that are outside the Executive Order’s scope. For US public companies and non-US companies with listed US securities or ADRs, the SEC – which is outside the scope of the executive order – also has civil enforcement authority over the FCPA, and the SEC has not yet stated how or whether it will change its approach to enforcing the FCPA.
For Australian businesses, the Commonwealth Criminal Code still operates to criminalise bribery of a foreign official. It is still a crime for a corporation to fail to prevent bribery of a foreign official by an associate, see our articles here: Will Australia’s foreign bribery laws finally bite? | Global law firm | Norton Rose Fulbright; New foreign bribery offence commences 8 September 2024 | Australia | Global law firm | Norton Rose Fulbright. There are also various other anti-bribery laws, such as the UK Bribery Act, that have extraterritorial application and could apply to Australian businesses.
Implementing a compliance program responsive to the risk of bribery or corruption continues to be the best approach to managing this legal, compliance and cultural risk.
