Recalibrating FCPA enforcement to focus on direct US interests

February 2026  |  SPECIAL REPORT: CORPORATE FRAUD & CORRUPTION

Financier Worldwide Magazine

February 2026 Issue

Since its enactment in 1977, the Foreign Corrupt Practices Act (FCPA) has been a cornerstone of US efforts to curb bribery of foreign public officials by US persons, issuers and domestic concerns. It prohibits corrupt payments to foreign officials for the purpose of obtaining or retaining business and demands robust internal accounting controls and accurate books and records.

However, in recent years, there has been increasing debate about how the FCPA should be enforced – in particular, whether enforcement policy should better align with direct US interests, such as protecting US economic competitiveness, national security and avoiding enforcement burdens that may disadvantage US businesses even when no clear US harm is shown.

After a brief pause in FCPA enforcement actions with the 10 February 2025 executive order pausing FCPA enforcement to further American economic and national security, the Department of Justice (DOJ) released its ‘Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA)’ on 9 June 2025.

With the release of these guidelines, the time is ripe to explore how FCPA enforcement recalibration might work, what the trade‑offs are and how policy might evolve.

The case for recalibration and a US-interests focus

With the release of the FCPA guidelines, the question that comes to mind, of course, is why have a shift in FCPA enforcement? Several plausible reasons exist for this shift.

One possible justification would be to make sure FCPA enforcement is best aligned with promoting US economic competitiveness. Historically, a critique of FCPA enforcement has been that it applies broadly – even to cases where the actual harm to US persons or competitiveness is minimal or absent – thereby imposing significant compliance burdens on US companies doing business abroad.

By recalibrating enforcement so that the focus is on conduct that undermines US firms or US employment, enforcement resources could be more tightly aligned with protecting US interests.

Another possible justification for a shift in FCPA enforcement would be to ensure that US national security and critical infrastructure are best protected.

In the modern era, corruption is not only an economic problem – it can also be a national security problem. Bribery tied to foreign officials in defence, intelligence, energy or critical infrastructure sectors may pose heightened risks to US strategic interests.

A further justification for a shift in FCPA enforcement priorities could be attributed to a simple matter of how best to use limited prosecutorial resources. Given finite investigative and prosecutorial resources, a more focused enforcement regime may yield better outcomes by prioritising cases that truly tie to US interests.

A final possible explanation for the enforcement pivot could be a renewed focus on sovereignty and foreign policy considerations. Specifically, unlimited extraterritorial FCPA enforcement would likely conflict with US foreign‑policy prerogatives or place US companies at a disadvantage relative to foreign competitors. A recalibrated approach can avoid such tensions.

The look of a recalibrated enforcement regime

The recalibrated US FCPA enforcement regime will likely have a number of interrelated components.

Overall, henceforth, FCPA investigations and enforcement actions will need to be authorised by senior DOJ officials, ideally the assistant attorney general for the Criminal Division. To pass muster, there will be at least four factors to consider.

First, if the investigation or enforcement action into foreign bribery is focused upon the activities of a cartel or transnational criminal organisation (TCO), this will be a deciding factor in getting the green light for the DOJ to proceed.

In particular, the DOJ is more likely to proceed if the conduct at issue involves the operations of a cartel or TCO, the use of money launderers or shell companies tied to a cartel or TCO, or is otherwise associated with employees of state-owned entities or foreign officials who have received payments from a cartel or TCO.

Second, an investigation or enforcement action is more likely to take place pursuant to this recalibration if the conduct at issue negatively impacted a specific, identifiable US entity, either by denying them fair competition or by causing economic injury to US companies or individuals. In other words, there must be a clear US interest or nexus as the gatekeeping criterion for proceeding.

Third, conduct is more likely to warrant investigation and enforcement if the conduct may impact US national security interests, including critical infrastructure or assets, or the defence and intelligence areas.

Fourth, an investigation or enforcement action is more likely to proceed if the conduct evidences strong indicators of bad intent, such as more sizeable bribes, sophisticated efforts to hide the bribes or obstruction to hide the trail of these activities. The FCPA guidelines specifically direct the DOJ to move away from looking at more routine business activities that involve de minimis or small dollar business courtesies.

Benefits of the recalibration

What will be the tangible benefits of this recalibration? At least four distinct benefits, outlined below, come to mind.

First, there will be better alignment with US strategic interests. Focusing FCPA enforcement resources on conduct that threatens US competitiveness or national security protects firms, jobs and supply chains.

Second, the overall compliance burden for US companies could be potentially reduced. Firms may face less risk in low‑impact scenarios where US interests are not engaged.

Third, there is the heightened potential for a more efficient use of enforcement resources. Narrowing the scope of FCPA enforcement and centralising oversight increases efficiency and maximises the deterrent effect. By focusing on whether or not the conduct at issue touches one of the four enumerated factors, there will be greater scope for companies in the initial crosshairs of an investigation to seek a declination much earlier in the process, particularly if the company proactively cooperates with the DOJ.

Finally, there will be the scope for the US to conserve precious political capital and flexibility in its relations with other nations. A more focused FCPA enforcement mandate can help avoid conflicts between enforcement and broader diplomatic or trade goals.

Consistent with this impact, one can readily foresee instances in which the DOJ defers to a foreign regulatory counterpart to use its own investigative resources to pursue claims against a particular bad actor because the actions, while concerning, simply do not trigger one of the four factors outlined above.

Risks and trade‑offs

With this recalibrated FCPA enforcement approach, there are necessarily risks and trade-offs for the DOJ.

One such risk is the potential for erosion of global anti-corruption norms. While a more focused FCPA enforcement approach may make complete sense to US regulatory authorities, the focus may not be in full congruence with the approaches taken globally to fighting corruption.

By charting its own regulatory course, the US may unintentionally undermine global norms by creating the impression that the US does not believe the global anticorruption norms should endure.

Another risk is the creation of a competitive disadvantage for companies through something akin to ethical arbitrage. By looking at the scope of FCPA enforcement priorities versus the approaches taken globally, it may guide companies in their business decisions and actions taken to facilitate contracts and other business dealings by looking at where those actions stand the greatest chance of raising regulatory concerns and then adjusting and pivoting business decisions to take advantage of this regulatory dissonance.

Finally, with a more focused US FCPA enforcement mandate, there is the potential impact of the US simply not occupying the historic role of being a moral authority in promoting the rule of law abroad. Many will no doubt applaud that changed role, but the impact of the US absence will nevertheless be felt.

Conclusion

Recalibrating FCPA enforcement to focus on direct US economic and national security interests is pragmatic and necessary. It aligns enforcement with strategic priorities, reduces undue burdens on US companies and directs resources toward cases that matter most.

However, care must be taken to maintain deterrence, global credibility and clear business guidance. The strength of the FCPA regime will ultimately depend on whether it protects US interests, while preserving integrity and fair competition worldwide.

 

Manjit Gill is a senior attorney adviser at the Bryn Law Group. He can be contacted on +1 (305) 374 0501 or by email: manjit@brynlaw.com.

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BY

Manjit Gill

Bryn Law Group

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