I am extremely pleased to welcome my colleague, Prof. Rachel Brewster, as a Lawfire^® contributor.  Prof. Brewster is not just one of the nation’s top experts on international trade law and related issues, she is also a very popular professor who co-chairs Duke’s highly-regarded JD-LLM in International and Comparative Law program.

In her post Rachel discusses the Foreign Corrupt Practices Act (FCPA) and explains how bribery and corruption are serious security issues across the planet:

When multinational firms bribe foreign officials to secure infrastructure contracts, energy concessions, telecommunications licenses, or defense procurement deals, the consequences are not merely economic. They affect governance stability, strategic industries, and the integrity of global markets.

I could not agree more.  Corruption has long been known as a major threat to international peace and security.

So how to address the problem?  Rachel references her recent article The Rise of Global FCPA Settlements, and goes on to describe how working with international partners can effectively resolve cases and enhance deterrence.  In short, she shows how a “global settlement framework is also a form of transnational security cooperation.”

Rachel’s essay illustrates that ‘national security law’ has many dimensions, and meeting its challenges requires a range of expertise.  What I especially like about her piece is that it focuses on a practical way the law can be employed to address an issue which too readily can devolve into an catalyst for conflict and all the misery that entails.

Here’s Prof. Brewster:

Global FCPA Settlements as National Security Infrastructure 

by Prof. Rachel Brewster

Under the Foreign Corrupt Practices Act (FCPA), the United States has long criminalized foreign bribery. Passed in 1977, the FCPA prohibits American nationals, American firms, or any firm listed on American exchanges (which includes most major foreign multinationals) from bribing foreign government officials to obtain or retain business.

Commonly framed as leveling the playing field for global commerce, the FCPA also has a national security dimension. When multinational firms bribe foreign officials to secure infrastructure contracts, energy concessions, telecommunications licenses, or defense procurement deals, the consequences are not merely economic. They affect governance stability, strategic industries, and the integrity of global markets.

My recent article, The Rise of Global FCPA Settlements, explores how states have developed a coordinated settlement framework to increase the deterrent effect of foreign bribery statutes and manage the risks of multijurisdictional prosecution in foreign bribery cases. In this post, I discuss how the global settlement framework is also a form of transnational security cooperation.

Corruption as a Security Problem

Corruption weakens states from within. It distorts procurement in strategic sectors, undermines the legitimacy of public institutions, and increases vulnerability to external influence. In sectors such as energy, telecommunications, infrastructure, and defense, corrupt contracting decisions can alter long-term strategic alignments.

Through the FCPA, the U.S. Department of Justice (DOJ) and Security and Exchange Commission have policed foreign bribery and sought to stabilize international markets and promote governance norms that reduce strategic instability.

The United States also encouraged other states to enact similar laws, crystalizing the anticorruption norm. In 1997, the United States convinced other major exporting states to sign onto the OECD Anti-Bribery Convention, requiring other OECD members to criminalize and prosecute foreign bribery.

Over the last thirty years, the risks of multijurisdictional prosecutions have increased. Foreign bribery almost always crosses national borders, and there is no double jeopardy rule across sovereign states. For instance, ABB, a Swiss company that lists on an American exchange, bribed executives of Eskom, South Africa’s state-owned energy company and faced prosecution from American, Swiss, and South African prosecutors.

In these cases of overlapping jurisdiction, the DOJ has begun engaging in global settlements— where two or more states enter into simultaneous or consecutive agreements with a corporate defendant arising from the same bribery scheme. These global settlements aid the fight against corruption in several ways.

First, it allows states to build stronger cases by pooling investigative resources, uncovering more and better evidence, and sharing information.

Second, it makes firms more likely to self-report, as there is both an increased probability of detection and the possibility of single resolution (rather than multiple uncoordinated prosecutions).

Third, it improves the legitimacy of the system as multiple states (not just the US) bring prosecutions and United States credits firms for the penalties paid abroad. In the ABB case, the United States, South Africa, and Switzerland coordinated their separate prosecutions of ABB, and the DOJ credited ABB with the penalties it paid to the Swiss and South African governments. The DOJ similarly coordinated with France and United Kingdom in its $3.9 billion settlement with Airbus addressing FCPA and International Traffic in Arm Regulations (ITAR) violations.  

Global Settlements as Coordinated Security Governance

From a security standpoint, this coordination performs several functions.

First, global settlements strengthen intelligence-sharing among allies. Foreign bribery investigations often uncover financial flows, shell structures, intermediaries, and political networks that are relevant beyond the immediate corruption offense. Coordinated investigations facilitate cross-border evidence exchange and institutional familiarity among enforcement agencies.

Second, it preserves corporations’ disclosure incentives. Modern corporate enforcement regimes depend heavily on voluntary self-reporting. If corporations fear uncoordinated prosecution across jurisdictions, they may withhold information. Coordinated settlements mitigate that risk by providing predictable penalty allocation.

Third, global settlements reduce inter-sovereign competition. Rather than imposing duplicative penalties, states negotiate allocation. This reduces diplomatic strain among allied governments confronting the same misconduct.

Retrenchment and the Shift in Enforcement Priorities

The Trump Administration’s retrenchment from robust FCPA enforcement introduces new uncertainty into this coordinated framework. The February 2025 executive order suspending FCPA enforcement, followed by the June 2025 DOJ enforcement memorandum, signals a recalibration of priorities.

The new enforcement guidance emphasizes actions against foreign firms, particularly when misconduct disadvantages U.S. businesses. This posture marks a departure from the more neutral, system-stabilizing logic that animated earlier coordinated settlements. The Trump Administration also appears to have less interest in coordinating prosecutions or sharing criminal penalties.

From an institutional perspective, this retrenchment raises two concerns.

First, if FCPA enforcement is viewed abroad primarily as a tool of economic nationalism or strategic competition, allied cooperation may erode. Foreign governments may be less willing to share evidence or participate in coordinated resolutions if they perceive enforcement as asymmetric or politically motivated.

Second, deprioritizing domestic enforcement while targeting foreign firms may undermine disclosure incentives. Corporations headquartered abroad may hesitate to self-report if they anticipate multiple governments will bring their own uncoordinated prosecutions. The success of global settlements depended in part on the predictability created by DOJ policies, such as penalty crediting and the avoidance of “piling on.”

From a national security standpoint, weakened allied cooperation could have spillover effects. Foreign bribery enforcement often uncovers financial networks, intermediaries, and governance vulnerabilities relevant beyond the immediate case. Coordinated investigations have functioned as channels of regulatory and intelligence collaboration. If that cooperation declines, enforcement capacity may fragment.

Future Revival?

A future administration that re-elevates anti-corruption enforcement could revive the global settlement model relatively quickly. Corporations themselves would likely support such a revival if FCPA enforcement returns to its former robust levels. Coordinated settlements provide predictability and limit duplicative exposure. In a high-enforcement environment, structured coordination is preferable to sovereign competition.

Global Settlements as a Model of National Security Cooperation

The relevance of global settlements to national security extends beyond foreign bribery. Export controls, sanctions enforcement, and other security-adjacent regulatory regimes also present overlapping jurisdictional risks. In these areas, corporate self-disclosure and cooperation are critical to enforcement effectiveness.

Global settlements demonstrate how states can coordinate to manage multijurisdictional risk without creating a supranational criminal authority. Even if temporarily dormant, the model provides a template for decentralized security governance in an era of overlapping jurisdiction.

In this sense, the story of global FCPA settlements is not merely about corruption. It is about how sovereigns construct cooperative enforcement mechanisms to address shared security-relevant risks—while preserving disclosure incentives and allied legitimacy. Whether that cooperative architecture is maintained will depend on future policy choices. But its institutional foundations are already in place.

About the Author

Rachel Brewster is the Jeffrey and Bettysue Hughes Professor of Law at Duke Law School. She writes and teaches in the fields of international trade law, anticorruption (including Foreign Corrupt Practices Act), inbound investment screening (including CFIUS), and international relations theory. She serves as co-director of Duke’s Center for International and Comparative Law, co-chair of Duke’s JD-LLM in International and Comparative Law program, and director of the Duke–Leiden Summer Institute in Global and Transnational Law in The Hague.

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