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The Study on the Reasonableness of the Extraterritorial Jurisdiction of the U.S. Foreign Corrupt Practices Act

Author: ChenDanDan
Tutor: XuDongGen
School: Shanghai Jiaotong University
Course: International Law
Keywords: Foreign Corrupt Practices Act extraterritorial jurisdiction reasonableness
CLC: D9
Type: Master's thesis
Year: 2012
Downloads: 31
Quote: 0
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Abstract


The anti-bribery provision of the U.S. Foreign Corrupt Practices Act wasoriginally enacted with extraterirtoriality, after amended in1998and theinterpreted by the executive authorities in enforcement actions，FCPA showsquite broad extraterritorial jurisdiction. With regard to the FCPA’sextraterritorial application, there have been lots of critics, those who object tothe extraterritoiral reach of FCPA believe that it constitutes culturalimperialism and overreaches into the sovereignty of individual countries. Thespecific characteristics of transnational public bribery which FCPA’santi-bribery provision regulates give some necessity and reasonableness tothe FCPA’s extraterritorial jurisdiction. The power for the Congress to grantthe extraterritorial jurisdiction to FCPA is stems rfom the Foreign CommerceClause and Necessary and Proper Clause, and the extraterritorial jurisdictionof FCPA may find its jurisdictional bases on the terirtorial pirnciple,nationality principle and effects doctrine which are all recognized underinternational law. However, U.S. constitution imposes structural limitationand Due Process Clause to limit the assertion of extraterritorial jurisdiction, and there are quite many theoires limit the extraterritorial jurisdictionassertion in international law, among them the most notable two are: comityprinciple and rule of reasonableness. Analysis the extraterritorial jurisdictionof FCPA in enforcement combining the above limitations suggests that theextraterritorial jurisdiction of FCPA is not always reasonable, and suggests tolimits the FCPA’s extraterritorial reach from different angles, such aslegislation, judiciary, execution and the companies involved in theinvestigation.

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