Federal Criminal Law and International Corruption

Abstract

The recent indictment of more than 40 individuals and entities in the FIFA corruption scandal demonstrates the expansive reach of the federal criminal law, raising important questions of extraterritorial jurisdiction and substantive law. This article argues that the existing law is sufficient to capture pervasive corruption in international organizations like Fédération Internationale de Football Association (FIFA) when their transactions reach domestic wires in the financial system. The principal charge in the FIFA case, for example, falls under the Racketeer Influenced and Corrupt Organizations Act (RICO). But the extraterritorial application of RICO is far from settled law, and the dramatic scale of the racketeering conspiracy will have profound implications for the substantive law, presenting problems of legal specification and challenging the transactional model of crime. One of the indictment’s predicate offenses, moreover, is a novel honest services fraud charge that implicates the very nature of fiduciary duties in the international marketplace. This article suggests that the law should extend fiduciary protections against commercial bribery in the international sphere so long as the values underlying those protections accord with collectively shared norms. Finally, this article advances a conceptual understanding, informed by theories of global governance and development, of why the law should countenance international corruption. Federal prosecutors are becoming increasingly concerned with the integrity of globally integrated markets, and global prosecutions may carry the potential to strengthen deterrence, policy cohesion among decentralized stakeholders, and reinforce international norms of conduct.