The Foreign Corrupt Practices Act (FCPA) has long been a cornerstone of American efforts to combat bribery and corruption around the globe. But with recent shifts in enforcement philosophy, how does this critical piece of legislation actually "work" now, compared to how it "used to work"? Let's break it down, looking at a landmark case to illustrate the potential impact.
The FCPA: A Look Back at its Traditional Role
For decades, the FCPA has been a powerful tool with two main prongs:
Anti-Bribery Provisions: These prohibit U.S. individuals and companies from making payments to foreign government officials to assist in obtaining or retaining business. This means no cash under the table, no lavish gifts with strings attached, and no "facilitating payments" that are actually bribes.
Accounting Provisions: These require companies whose securities are listed in the U.S. to make and keep accurate books and records, and to devise and maintain a system of internal accounting controls. This is crucial for preventing slush funds and hidden payments.
Historically, the enforcement of the FCPA was broad, with the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) actively pursuing cases involving a wide range of corrupt practices across various industries and geographies. The goal was to ensure a level playing field for businesses and uphold American values of transparency and ethical conduct worldwide.
The New Landscape: FCPA Enforcement Under the Current Administration
In early 2025, the administration signaled a new direction for FCPA enforcement. An executive order initiated a 180-day pause on new investigations and enforcement actions, citing concerns that "overexpansive and unpredictable" enforcement was hindering American businesses' global competitiveness.
Following this review, new guidelines were issued. The key takeaway is a more targeted approach:
Focus on "American Interests": Enforcement is now intended to prioritize cases that directly align with American economic and national security interests. This means less emphasis on cases deemed to have a lesser impact on these core areas.
Reduced Scope?: There's an implication that certain types of bribery or corrupt practices, particularly those involving smaller sums or in less strategically important regions, might receive less attention.
Emphasis on Competitiveness: The underlying philosophy suggests a balancing act between combating corruption and ensuring American companies can compete effectively in complex global markets.
The United States v. NG Chong Hwa Case: A Precedent Under Review
The case of United States v. NG Chong Hwa, also known as the Roger Ng case, is a prime example of the FCPA's traditional reach.
What Happened: Ng Chong Hwa, a former managing director at Goldman Sachs, was sentenced to 10 years in prison in March 2023 for his role in a massive bribery and money laundering scheme involving Malaysia's 1MDB state fund. He and his co-conspirators paid over $1 billion in bribes to government officials in Malaysia and the UAE to secure lucrative bond deals for Goldman Sachs. The proceeds were then laundered through the U.S. financial system. Goldman Sachs itself paid over $2.9 billion in penalties as part of a coordinated resolution.
Why it was Significant: This case demonstrated the FCPA's ability to prosecute high-level individuals and impose substantial penalties on major financial institutions for complex international bribery schemes. It highlighted the importance of rigorous internal controls and the serious consequences of corporate corruption.
How Would the Ng Chong Hwa Case Be Handled Now?
Under the new FCPA enforcement guidelines, the Ng Chong Hwa case would likely still be pursued, albeit potentially with a different strategic emphasis.
Still a Priority: The sheer scale of the bribery ($1 billion+), the involvement of a major U.S. financial institution (Goldman Sachs), the laundering of proceeds through the U.S. financial system, and the impact on international financial integrity would almost certainly place it within the "American economic and national security interests" framework. It's a case that clearly affects the stability of global markets and the reputation of U.S. institutions.
Potential Nuances: While the prosecution would likely proceed, the administration's new approach might influence certain aspects. For instance, there might be a greater focus on the direct harm to U.S. economic interests rather than a broad stance against all forms of international corruption. The specific charges or the negotiation of penalties with corporate entities could potentially reflect this shift in emphasis. However, a case of this magnitude is difficult to ignore given its direct relevance to U.S. financial systems and global trust.
The Future of FCPA Enforcement
The shift in FCPA enforcement signals a more pragmatic and perhaps less expansive approach. While high-impact cases like 1MDB will likely continue to be pursued, companies operating abroad may find themselves navigating a slightly different risk landscape. The core message remains: bribery is illegal. But the definition of what constitutes a priority for U.S. enforcement may now be more narrowly defined through the lens of direct American interests.
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