Originally Posted by
wiggin
Flixy, I think there are some reasonable questions about the US government's increasing use of regulatory pressure against multinational corporations, but I don't think it's as clear-cut as you suggest it is. The US (correctly) maintains that it can regulate companies that have a substantial presence in the US, even if their headquarters are elsewhere - Alstom certainly has largish US operations. So that doesn't bother me as much as other aspects of 'extraterritoriality' in US law.
The separate question of how a company can be fined for bribery that happened in a different country is a broader one about figuring out the best way to cut down on corruption and bribery. In many of the bribe receiving countries, there is little to no accountability (let alone leverage), so the companies will never be called to task. The US, however, is such a large and indispensable market (not to mention controlling the money flows of most of these companies) that they have the clout and ability to go after 'bad actors' who have a substantial US presence. Whether the money gets to the countries where the bribery took place is not really the point - the fines are not at all intended to be compensation for the damage caused to a country, but punitive measures taken to deter further wrongdoing. It might be nice if fines went into some sort of compensation fund, but that's not really the point. (It's also an open question who should be getting the compensation. Western competitors of the company that lost market share? Individuals in the corrupt country who are overpaying for goods? Governments that are getting undermined by foreign money?)
Similarly, it doesn't bother me too much when slimy banks that aren't US-headquartered get hunted down by the DOJ et al for e.g. sanctions busting, money laundering, etc. The BNP Paribas fine didn't bother me one whit - the US has the resources to detect the problem, the leverage to force the bank to comply, and since the US runs the global financial system, they're really the only game in town for enforcing this kind of thing. This is a bit more problematic than the Alstom case, however, since many of the banks that the US acts against don't have substantial US operations, but rather just use the US-based financial plumbing.
I do have a concern, though, about regulatory overreach. I have no doubt that most of the companies being socked with big fines nowadays have done all sorts of bad things. But almost every case is settled out of court, mostly because companies are terrified of the DOJ et al revoking their ability to do business and really dismantling them. It almost appears to be a shake-down in some respects, and there may be some value in companies getting their day in court - both to establish guilt, and to keep overzealous regulators from extorting companies for more fines.
A second concern revolves around overlapping regulatory jurisdictions for 'global' crimes. Just look at all of the fines in the financial industry for e.g. LIBOR fixing or the like. You get a bunch of different national and local regulators taking part in actions against a variety of companies, and the results are sometimes poorly coordinated and lack focus. For multinational companies, the regulatory picture is getting more and more complex, and better coordination on enforcement actions (and monitoring, for that matter) would be in order. I have no idea if there's a similar French or EU agency or law that targets bribery and corruption cases overseas, but it probably would have been better had the US DOJ coordinated their enforcement with EU/French regulators. This not only provides for a unified, carefully choreographed approach to the case, but it also strengthens institutions outside of the US that can then continue enforcement against against other local wrongdoers. Contrary to popular belief, enforcement shouldn't be about making money for the government, but rather about punishing and deterring corrupt actors; policy and enforcement need to reflect that.
