Business as Usual? Key Takeaways from the Trump Administration's FCPA Enforcement Pause

On 10 February 2025, the Trump administration issued an Executive Order (EO) pausing all Foreign Corrupt Practices Act (FCPA) investigations and enforcements for at least 180 days. The EO, which was issued to ‘restore American competitiveness and security in FCPA Enforcement’ directs the Attorney General to issue revised, reasonable enforcement FCPA guidelines.

The EO does not invalidate the FCPA or affect the operation of other foreign and state anti-corruption laws. Further, international anti-foreign bribery agreements continue to bind the US and a majority of countries around the world (e.g., the UN Convention Against Corruption and OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transaction).

In this changing geopolitical climate, it is imperative that individuals and businesses engaging with foreign government officials, political parties, and public international organisations: (1) properly understand the multijurisdictional risks of their engagement; (2) continue to engage in appropriate anti-corruption practices to mitigate these risks; and (3) consider the statute of limitations for FCPA offences and the risk of delayed prosecutions following the current pause, or under a future change in administration. 

In this article, we discuss: the impact of the EO, the multijurisdictional anti-foreign bribery regimes that continue to apply following the EO, and the risks for businesses going forward.

What is the impact of the EO?

The EO orders the Attorney General to: 

• stop all new and existing FCPA investigations and enforcement actions;
• conduct a review of past FCPA investigations and enforcement actions; and
• issue new FCPA guidelines or policies to further American economic and national security, including any remedial measures to address inappropriate past FCPA investigations and enforcement actions.

Importantly:

• a “pause” does not equate to an abandonment of all FCPA investigations and enforcements by US authorities. The EO expressly allows the Attorney General to make individual exceptions to investigate and enforce the FCPA. Moreover, the order only applies to criminal FCPA investigations and enforcement by the Department of Justice (DOJ). The U.S. Securities and Exchange Commission (SEC) is not bound by the order and can still engage in civil FCPA investigations and enforcement actions.
• Businesses and individuals could be prosecuted for foreign bribery after the EO is revoked or by the next US administration. Since foreign bribery offences typically have a 5-year limitation period under the FCPA, enforcement may be resumed if the 180-day pause is lifted or there is a change in policy following the next US administration (from January 2029 onwards).

Jurisdictional perspectives from our global experts:

As the EO does not repeal the FCPA or affect the operation of other foreign and state anti-corruption laws, individuals and businesses dealing with foreign government officials, political parties and public international organisations need to keep in mind the broader, multijurisdictional framework that applies in relation to foreign bribery practices. Moreover, they need to keep in mind the extent to which other anti-bribery laws extend beyond the bribery of overseas government officials.

Australia

The Australian Government maintains a strict zero-tolerance policy towards foreign bribery and other forms of corruption. Foreign bribery in Australia (bribing or attempting to bribe a foreign public official) is a serious criminal offence that carries heavy penalties.

In February 2024, Australia expanded its anti-foreign bribery laws by enacting a new absolute liability offence for failing to prevent foreign bribery by associates of a company (click here to see our previous alert on this development).

Relevantly, Australia’s anti-bribery laws have an extraterritorial effect and apply to conduct that occurs in Australia, as well as conduct that occurs outside Australia where the offence is committed by an Australian citizen, resident, or corporation. The newly introduced failure to prevent foreign bribery offence applies to Australian corporations for conduct committed inside and outside of Australia by their associates, whether or not those associates are Australian. Equally, the offence applies to foreign organisations for conduct committed inside Australia by their associates, whether or not those associates are Australian.

United Kingdom

There is no indication of a change of strategy in the UK enforcement approach, where the Serious Fraud Office (SFO) has traditionally operated without external interference in the matters which it investigates and prosecutes. While there has been talk of changing the structure of UK criminal enforcement agencies, substantive law, or enforcement priorities, this does not seem to be a key issue for the current Labour administration. The “failure to prevent fraud” offence comes into force in September 2025 under the Economic Crime and Corporate Transparency Act 2023, and this may be seen as satisfying demand for substantive reform at this stage. Indeed, that new offence may deflect some attention from existing bribery offences for both businesses and prosecutors: in his only public speech to date, the current Director of the SFO, Nick Ephgrave QPM, declared that he wanted “to be the first to prosecute someone under the new provisions” of that Act.

The SFO’s five-year strategy published in 2024 addresses method, rather than indicating areas of focus within its remit, and while it refers in a number of places to the fight against complex financial crime and serious fraud, bribery and corruption, many commentators have suggested there is an increased domestic focus since Mr Ephgrave became Director in 2023. If anything, the number of individual prosecutions may increase. There have been relatively few individual convictions under the Bribery Act 2010, and the perception in recent years has been that the SFO has been focussing on the corporate offence rather than pursuing individuals. As matters stand, though, the SFO has announced charges for bribery against eleven individuals which are yet to come to trial. Two of those trials are listed for 2026. These follow from corporate investigations, and two corporates remain subject to SFO investigation in relation to bribery.

Of course, the UK legislation differs from the FCPA and legislation in some other countries, in criminalising domestic and private sector bribery as well as cross-border public sector bribery. The extensive jurisdictional reach created by the liability for service providers acting on behalf of an entity conducting business in the UK means that a wide range of businesses remain subject to UK jurisdiction. Businesses need to plan their compliance programmes accordingly.

France

Notwithstanding the Trump administration’s FCPA ‘pause’, the enforcement of US companies on French territory and their conduct towards French companies and citizens remains unchanged. French criminal law applies to anyone who commits a crime on French territory and/or against French citizens or companies abroad.

Since 2016, France has bolstered its anti-corruption efforts with the Sapin II Law and expanded its reach over international corruption. Since its establishment, the Parquet National Financier (PNF) has proven to be a powerful prosecutorial body, rivalling the enforcement powers of the US DOJ and UK SFO. The PNF has collaborated globally with all the anti-corruption enforcement agencies in the world. Symbolically, six of the last seven deferred prosecution agreements targeted foreign official corruption.

As the US DOJ steps back, France is emerging as a key player with robust extraterritorial provisions and strengthened international cooperation.

Also, marking the PNF's 10th anniversary with global enforcement authorities and reaffirming its commitment in the fight against global corruption France seems willing to take on the role the US no longer wishes to play. Emblematically, the day after the EO was signed, a rising prosecutor from the PNF publicly declared on social media, in English: "Anyway - The PNF will keep its watch on foreign bribery."

For US companies or US citizens, corruption risks in business in France or with French entities remains unchanged. Similarly, French companies doing business in the US or with US entities will have to keep the high ethical standards, implemented through robust compliance rules and controls on themselves and contractors.

Poland

Recent changes to the FCPA do not affect the applicability of Polish anti-corruption laws. Regardless of a company's origin, Polish criminal law may apply, and corruption risks for businesses remain unchanged. Organisations must continue to uphold high ethical standards, ensuring compliance with both local and international anti-corruption regulations.

Under Polish law, corruption is criminalised by a number of provisions that include, inter alia, bribery (both passive and active), influence peddling, electoral corruption, economic corruption and bid rigging. Penalties for corruption can be severe, ranging from a fine to imprisonment for up to 20 years, depending on the nature of the offence.

Polish criminal law applies to anyone who commits a crime on Polish territory. However, Polish citizens as well as foreigners may also be liable for acts committed abroad. In the case of foreigners, it is possible to apply criminal liability only if the act is an offence against the interests of the Republic of Poland, a Polish citizen, a Polish company or Polish legal entity. Criminal liability for an act committed abroad applies only if the act is also recognised as a crime by the laws in force in the place where the act is committed. 

It is also important to note that Polish criminal law applies to individuals, as the law holding corporate entities criminally liable is practically not used. In cases of corruption, criminal responsibility typically falls on board members, managers, and other individuals handling company matters in this area.

Polish crime surveys and reports identify corruption as one of the most common economic crimes, along with bribery and fraud, which is no different from the global picture of economic crime. In 2023, the police uncovered over 3,600 cases of corruption. Last year, Poland recorded its worst result in 12 years in Transparency International’s Corruption Perception Index, continuing a downward trend since 2015.

In response to the deteriorating state of the fight against corruption in Poland, the government has approved a plan to dissolve the Central Anti-Corruption Bureau (CBA) - the main unit responsible for combating corruption. The law proposed by the government to dissolve the CBA will take effect in certain areas from 1 April 2025. The CBA’s functions will be transferred to the police, the Internal Security Agency, and the National Treasury Administration. This change is a result of the CBA’s inefficiency in prosecuting corruption-related offences. The new "anti-corruption shield" will be implemented to strengthen measures against corruption and safeguard the country’s economic interests.

Key takeaways

For businesses engaging with foreign government officials, political parties and public international organisations, we provide the following takeaways to consider when assessing risk in light of the EO:

• Consider your foreign bribery risks globally, in light of the often extraterritorial reach of anti-foreign bribery laws;
• Maintain compliance practices and protocols which align with these foreign bribery risks; and
• Continue to comply with the FCPA, to minimise risk of DOJ enforcement action going forward.

Our global team is continuing to monitor the impact of these regulatory changes. Should your business require advice in relation to this topic, we encourage you to reach out to our global experts.