The Foreign Corrupt Practices Act (FCPA) world went crazy last week with headlines along the lines of “No credit for self-reporting”; “No credit for cooperation”; and “Voluntary disclosure doesn’t change penalties”. All of these pronouncements were based upon a draft study done by Professors from the New York University School of Law (NYU School of Law) in an attempt to provide an answer. As reported by Sam Rubenfeld in Corruption Currents, in an article entitled “Study Says Voluntary Disclosure Doesn’t Change FCPA Penalties”, the study, which examines US anti-bribery enforcement actions from 2004 through 2011, found no evidence that voluntary disclosure of wrongdoing results in lesser penalties. He also quoted one of the study’s co-authors Kevin E. Davis, a Vice Dean at NYU School of Law, who said in an email, “We cannot rule out the possibility that voluntary disclosure does result in some form of leniency”.
However, if one reads the study by Davis and Stephen Choi, entitled “Foreign Affairs and Enforcement of the Foreign Corrupt Practices Act”, it becomes clear that the purpose of the study was to test “the extent to which four broad theories explain the recent pattern of enforcement of the FCPA.” Using a dataset of FCPA cases resolved from 2004 to 2011, the inquiry revolved around the extent to which these four theories explain variations in the treatment of actors who violate the FCPA.
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