Coordinating Prosecutions: The Rise of Global FCPA Settlements

One of the central structural challenges in transnational criminal enforcement is multijurisdictional prosecution. When multiple states possess prescriptive jurisdiction over the same conduct, wrongdoers can face overlapping—or sequential—national prosecutions for a single course of conduct.

This challenge is endemic in the anti-corruption arena. Foreign bribery is almost always transnational: the bribe is paid in one state by a firm headquartered in another. In addition, the U.S. Foreign Corrupt Practices Act (FCPA) exacerbates jurisdictional overlaps by extending its reach to non-national corporations that list on American exchanges (which includes most major foreign multinationals). As a consequence, multiple sovereigns can generally prosecute foreign bribery cases.

In my recent article, The Rise of Global FCPA Settlements, I discuss how the United States government has created an informal mechanism to address these challenges: the global FCPA settlement. These settlements serve multiple functions. They coordinate parallel or sequential proceedings, they pool investigatory resources and promote evidence sharing, they coordinate prosecutorial demands for the defendant corporation, and they structure the division of FCPA penalties.

This post begins by addressing four questions regarding global settlements: (1) What elements are common to global settlements? (2) Why do foreign states want to engage in global settlement with the United States? (3) Why does the United States want to cooperate with foreign governments? and (4) Can global settlements compensate governments where the corruption occurred? The post then briefly addresses the Trump administration’s new approach to the FCPA and the likely effects of that approach on global settlements.

What Are Global Settlements?

Global settlements are coordinated resolutions in which two or more states enter into simultaneous or consecutive agreements with a corporate defendant arising from the same bribery scheme.

In practice, global settlements typically involve non-trial resolutions such as deferred prosecution agreements, non-prosecution agreements, or their functional equivalents in other jurisdictions. The participating governments share investigative information, coordinate remedial requirements (including compliance reforms and monitorships), and determine how criminal fines, disgorgement, and other monetary sanctions will be divided. The DOJ generally implements this allocation through a process of “crediting,” reducing the American penalty to reflect amounts paid to foreign authorities.

Global settlements effectively transform overlapping jurisdictional competition into a negotiated framework of coordinated comity, while preserving decentralized national control.

Why Do Foreign States Want to Cooperate with American FCPA Prosecutions?

Foreign governments have both protective and financial reasons to participate. During earlier periods of robust FCPA enforcement, the United States frequently acted as the dominant enforcer in antibribery cases. Foreign governments often saw their multinationals (sometimes national champions) in the American prosecutorial crosshairs. These governments were understandably concerned about ceding regulatory authority to Washington.

In response, many states (including the United Kingdom, France, Switzerland, and Brazil) adopted non-trial procedures or other quick-resolution mechanisms that allowed their prosecutors to work at the same pace as American enforcers. By initiating their own prosecutions and working with the United States, foreign governments gain a voice in shaping outcomes when their companies are in the dock. This provides foreign governments with greater control over the fate of their largest corporations.

Foreign governments also have a financial interest in promoting global settlements. American officials will credit the target corporation for penalties paid to foreign enforcers, allowing foreign governments to receive a significant share of the overall penalties. For instance, in an FCPA resolution involving Airbus, the United States, the United Kingdom, and France coordinated their prosecutions. Of the $2 billion in penalties assessed by American enforcers, the United States collected only $294,500, crediting Airbus with over $1.8 billion in penalties paid to the French and British governments.

Why Does the United States Want to Cooperate with Foreign Governments?

From the U.S. perspective, coordinated settlements increase the likelihood that firms will self-report misconduct. This is important because the FCPA regime depends heavily on voluntary disclosure and corporate cooperation.  First, investigative cooperation increases the resources dedicated to foreign bribery. Foreign authorities can provide access to local evidence, witnesses, and financial records that U.S. prosecutors might struggle to obtain independently. As a result, transnational cooperation increases the likelihood that the bribery will be discovered (and more aspects of the bribery scheme will be uncovered) and provides prosecutors with better evidence of criminal activity.

Second, global settlements mitigate the risk that multijurisdictional exposure will deter corporate self-reporting. If firms fear duplicative penalties in multiple jurisdictions, they may choose silence over cooperation. By providing greater certainty that corporations can resolve bribery issues in a single resolution, corporations are more likely to cooperate with U.S. government investigations.

In addition, global settlements may increase the perceived legitimacy of FCPA actions. The FCPA is often viewed negatively as unilateral and extraterritorial. While FCPA actions remain extraterritorial, global settlements involve coordinated actions by multiple states and often include the state where the bribery occurred.

Can Global Settlements Compensate Governments Where Corruption Occurs?

Global settlements also have a compensatory dimension. In some cases, the sharing of criminal penalties approximates a form of asset return to the state where the corruption occurred.

For instance, in one recent case, Swiss company ABB Ltd. bribed Eskom, the South African state electricity company, to win a bid to build a new power station. The United States coordinated with South Africa, Germany, and Switzerland to reach a global settlement. Of the $462 million in civil and criminal penalties assessed by the DOJ and SEC, the United States ultimately collected only $147.5 million, crediting $230 million of the penalties ABB paid to South Africa (as well as payments to Switzerland and Germany) toward the American penalty. This division of the penalties ensured that South Africa, the country where the corruption occurred, retained the largest share. Although the United States did not formally characterize its crediting of foreign payments as restitution, it functioned as de facto compensation for harm linked to corruption within South Africa’s public institutions.

This compensatory feature distinguishes global settlements from earlier unilateral enforcement patterns. Instead of concentrating financial recoveries in the U.S. Treasury, coordinated settlements redistribute sanctions to reflect the geographic impact of corruption. For host states, such allocations can reinforce domestic reform efforts and strengthen political support for anti-corruption enforcement.

To be clear, the United States does not enter into global settlement in the majority of FCPA cases.  As a result, it does not share penalties with the country where corruption occurred in most cases. Even in a global settlement, the host state is not consistently included in the resolution. However, global settlements can redirect significant resources to the country where corruption occurred. In another recent case, American regulators credited Goldman Sachs with $606 million paid to the Malaysian government (in addition to the $1.4 billion that the United States returned through its Kleptocracy Initiative).

The willingness of the United States to share penalties reflects a broader institutional logic. In a world of overlapping jurisdiction, sovereign coordination improves enforcement effectiveness. As the article argues, global settlements represent a move from negative comity toward coordinated comity—a negotiated sharing of authority and sanctions that transforms potential jurisdictional conflict into structured cooperation.

The Trump Administration and the Durability of the Model

The current retrenchment in FCPA enforcement under the Trump administration makes continued reliance on global settlements unlikely in the near term. The current administration has moved resources away from FCPA enforcement and does not appear to have any interest in transnational anti-bribery cooperation. The current administration has also disbanded the Kleptocracy Initiative, indicating that it does not intend to return stolen assets to foreign governments, let alone share FCPA penalties.

However, the underlying architecture supporting global settlements has not disappeared. Over the past decade, foreign enforcement authorities have expanded both their substantive anti-bribery statutes and their institutional capacity, often seeking to participate in joint resolutions.

Should a future administration seek to restore robust FCPA enforcement, the global settlement framework could be reactivated. The infrastructure is already in place. Moreover, firms operating in global markets would have incentives to support its return. In an environment of overlapping jurisdiction, negotiated alignment among regulators is far more stable than parallel and potentially conflicting enforcement actions.

A Framework for Transnational Enforcement?

The global settlement framework also offers lessons beyond anti-corruption law. Other cross-border regimes—such as export controls, sanctions enforcement, and certain financial crimes—present similar multijurisdictional challenges. In these areas, as in foreign bribery, corporate self-disclosure is often central to enforcement. In the absence of supranational criminal authority, states can manage jurisdictional overlap through negotiated cooperation rather than unilateral maximalism.