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On 24 August 2018, the US Court of Appeals held in U.S.A v. Lawrence Hoskins No. 16-1010-CR (Hoskins) that a non-resident foreign national cannot be guilty of violating the US Foreign Corrupt Practices Act (FCPA) as an accomplice or a co-conspirator if that person was incapable of committing it as a principal.

In recent years, US authorities have successfully prosecuted a number of foreign corporations for bribing non-US public officials. In addition to US domestic concerns, issuers of securities and their employees or agents, the FCPA also applies to US citizens outside of the US and any persons committing a prohibited act while in the territory of the US.

However, US prosecutors have faced difficulties in establishing the jurisdictional nexus between a potential foreign defendant and corrupt activity in the US. In this context, the US government has taken an expansive view that individuals and companies, including foreign nationals and companies, may be liable for conspiring to violate the FCPA even if they are not, nor could be, independently charged with an actual violation[1]1. While Hoskins appears to limit this expansive view of the FCPA’s extraterritorial application, it is also likely to strengthen the US regulators’ recent FCPA enforcement strategy of increased cooperation and coordination between global enforcement bodies to ensure wrongdoers are prosecuted in the most appropriate jurisdiction to achieve a conviction.

What Hoskins means for companies operating in Asia

Many MNCs operating in Asia have complex corporate structures and employ global talent. Companies are also aware of the FCPA’s “long arm” jurisdiction. In this case, Hoskins, was a senior executive for the Asia region for the subsidiary of a French company and had allegedly approved payments to “consultants” retained to bribe Indonesian officials. He was a British national and was not working for a US company nor present in the US during the alleged violation.

On its face, Hoskins limits the extraterritorial application of the FCPA because it clarifies that the government cannot prosecute foreign nationals for conspiring to commit or aiding and abetting a violation of the FCPA if they are not otherwise subject to the FCPA. This statement may appear self- evident, but runs counter to the baseline rule for conspiracy that even when only a certain category of person may commit a crime, a person outside the category can still conspire (and be guilty) of the crime as conspiracy is a separate offense.

Undoubtedly, Hoskins will reinforce the US government’s recent strategy of international coordinated and cooperative enforcement, under which they pursue the US company or issuer while local authorities prosecute the foreign individuals. In most cases, executives of foreign multinational companies not otherwise subject to the FCPA are unlikely to function as agents because they are more likely the persons directing or approving a bribery scheme (i.e., the principal).

Recognizing the difficulty in prosecuting foreign nationals, recent enforcement actions demonstrate that the US government has taken a different and possibly more efficient approach – by resorting to collaboration and shared prosecutions with their foreign counterparts facilitated especially by the rising ease of international coordination. For instance, in the bribery scheme involving Telia Company AB[2]2, the US Securities and Exchange Commission (SEC) and the US Department of Justice (DOJ) pursued enforcement actions against Telia Company AB (but not the Telia executives), while the Swedish authorities charged Telia executives for bribery. Another example would be the Odebrecht global settlement[3]3, where the DOJ pursued enforcement actions against the company, while the Brazilian authorities prosecuted the Brazilian individuals.

Actions to take

Companies with operations across multiple jurisdictions should be prepared to coordinate concurrent investigations and prosecutions in each applicable jurisdiction which may be involved. We recommend that companies should:

  • Continue to develop resources for building a compliance program which follows standards set out under both the FCPA and local anti-corruption laws.
  • Provide anti-bribery training to employees emphasizing that prosecution can happen anywhere and to anyone, including individuals and not just companies.
  • Be prepared to respond to investigations and prosecutions spanning multiple jurisdictions by developing legally privileged (where possible) cross-border engagement strategies with coordinated local counsel teams to assess disclosure obligations and related risks in each of those countries.


Hoskins may potentially face liability if found to be acting as an agent of domestic concern, a determination not made in this decision. The DOJ can pursue separate counts alleging that the defendant is an “agent” of a US company on the remaining counts that have been on-hold during the appeal. However, the court’s decision creates an additional evidentiary burden for the DOJ as it requires evidence of an agency relationship. Such a requirement appears to be counter-intuitive especially when a senior manager of a foreign parent is alleged to be the agent of the US subsidiary (whereas it is almost a given that an employee of a subsidiary acts as its parent’s agent).

We are seeing an uptick in US government coordination of and cooperation with foreign enforcement authorities in order to hold corrupt individuals and companies accountable, particularly foreign executives, perhaps as a result of the challenges faced in Hoskins. With the Hoskins ruling, we expect to see this trend continue with greater vigor. Companies must therefore ensure that their compliance programs conform with global standards, not just US benchmarks, and consider their engagement strategies with local regulators as well as the US DOJ and SEC.


[1] As provided in the FCPA Resource Guide jointly issued by the US Department of Justice and US Securities and Exchange Commission in 2012

[2] USA v Telia Company AB No.17- CR-581-BGD (2017)

[3] USA v Odebrecht S.A. Cr. No.16-CR-643-RJD (2016 )


Simon Hui is a partner and leads Baker McKenzie’s Dispute Resolution Group in Shanghai. Mr. Hui is ranked among the leading lawyers for dispute resolution/regulatory and compliance in China by Chambers Asia Pacific, Chambers Global and Legal 500 Asia Pacific. He has conducted complex internal investigations for a large number of multinational companies across a range of industries. He is also a skilled investigator and has experience in dealing with PRC government authorities and regulators such as PSB, SAMR, NSB and SPP. He has been interviewed by leading business media, such as the Financial Times, for his work on assisting the SOE in the establishment of compliance system as the country pushes for its SOEs to participate in the Belt & Road Initiatives.


Vivian Wu is a partner in Baker McKenzie's Beijing office, advising US and European corporations on regulatory, compliance and FCPA-related matters in China. Ms. Wu worked at our Washington D.C. office in 2014, graduated from Harvard Law School, and is admitted to practice in New York and China.


Peter Andres is a Special Counsel in the Firm’s Compliance and Investigations practice group based in Hong Kong. Prior to joining the Baker McKenzie's Hong Kong office, Peter worked in the Washington, D.C. and Sydney offices of the Firm. During his time in Washington, D.C., Peter spent significant time assisting in the representation of companies before the Department of Justice and the Securities and Exchange Commission on FCPA investigations. In addition, Peter regularly speaks on issues related to technological innovation in the legal practice and has helped push the Firm’s adoption and development in Asia Pacific of e-discovery tools, data analytics, and Technology Assisted Review in investigations.


Henry Chen has more than 17 years of experience in handling cross-border compliance and investigation matters. As a US- and PRC-trained lawyer, he has advised many multinational corporations on navigating and managing compliance risks in a variety of areas, including anti-bribery and corruption, anti-money laundering, anti-unfair competition, customs, data protection and cybersecurity, employee misconduct, ESG, financial crime, fraud, and whistleblower allegations.

Prior to joining the Firm, Henry acted as the Asia Pacific Director for Investigations at a Fortune 500 pharmaceutical company and led its regional compliance investigations. Besides Shanghai, he had also worked in Washington, DC, Hong Kong and Beijing as a compliance professional.