The Trump administration has decided to focus on the prosecution of hard-core international crime of drug cartels and migrants. To do so, the administration not only ignored Elon Musk’s blatant conflict of interest with control of DOGE and his billion-dollar enterprises that will lead to a kleptocracy, but decided to suspend sanctioning the transnational white-collar crime of bribes and kickbacks. Today I focus on the initial impacts of this suspension.

With the excuse that it creates an unbalanced playing field for gringo businesses, Trump suspended the Foreign Corrupt Practices Act (FCPA) for 6 months last February. This law prohibits natural and legal persons with ties in the USA from paying or offering bribes to obtain business outside North America. The White House alleges that there is excessive implementation of this policy, which has harmed the competitiveness of its companies in the global market, making it impossible to access minerals and strategic ports. But we all know that what Trump wants is to give gringo companies a leg up against Chinese competitors, paying better bribes than them and thus continuing to regress ethically so that the law of “survival of the fittest” applies. 

According to Stanford University, the FCPA had maintained some control and recovered at least $24 Billion USD in the last decade, for penalties against extortion or bribery of approximately $11.2 Billion USD, paid in countries such as China, Brazil and India which were apparently the countries most prone to this type of corruption. In 2020, Airbus paid USD 3.6 billion as a penalty for foreign bribery and now investigations are suspended, such as one in progress against the group of one of the richest men in Asia, Gautam Adani.

The FCPA has spurred close cooperation on evidence collection and prosecutions over the years between US authorities and their counterparts in Brazil, Colombia, Mexico, Peru and other jurisdictions. FCPA enforcement has gained a level of traction in Latin America that has not been seen in other parts of the world, as evidenced by the creation of the FBI’s Miami office. Major Latin American companies, such as Petrobras, Braskem, Odebrecht, LAN Airlines, Embraer, Grupo Aval and Cemex, have been the subject of FCPA investigations or enforcement in recent years. This is due to their status as publicly traded companies in the US or the fact that the corruption schemes in which they were involved affected the US.

The FCPA is not only ethically sound because it prevents the law of the jungle where business is won by the biggest, highest bribe payer and the least scrupulous, but it also protects both US and international companies, and especially small and medium-sized companies, because it removes the barriers that result from these bribes that only large companies can pay. In addition, the FCPA fueled an international trend in which companies with compliance programs have played a key role in the fight against corruption and its suspension may seriously affect or reverse this trend, decreasing the pressure on other nations to adopt and enforce similar laws. So it is now up to us to look for alternatives.

In Colombia we are left with the option of deterring the corrupt and recovering losses from corruption through compensation for the collective damage to society as well as that of individual victims. However, this is a possibility that is just coming to the fore. In the Colombian courts, things are not looking good because the Council of State has insisted on burying the compensatory role of the popular action, legally created to combat violations of collective rights. For instance, the former attorney Margarita Cabello voluntarily stopped representing the collective victims in the Odebrecht-Aval corruption case. 

At the global level, there remains the deterrent factor of the extraterritorial jurisdiction of some US regulations such as the Foreign Narcotics Kingping Act and the Anti-Money Laundering Act, although unfortunately they are not designed for the fight against international white-collar crime. And, as we will see from the article on the Italian formula and from Professor Roht-Arriaza’s interview, we must insist on the combination of all legal forms of fighting grand corruption.