Introduction
In today’s America, it represents a usual practice among politicians and government officials to claim that the functioning of the country’s legislative branch has a strongly defined ethical significance. After all, it does not represent much of a secret that in order to be enacted by the US Congress, just about every legislative initiative must prove potentially beneficial to the society’s moral well-being. The Foreign Corrupt Practices Act (FCPA) illustrates the validity of this suggestion perfectly well. The reason for this is quite apparent – the actual rationale behind the FCPA’s enactment was the publicly shared belief that once covered by its provisions, American companies will be much more likely to apply extra effort into ensuring the ethical soundness of their commercial operations in foreign countries. Nevertheless, there appears to be much more to the FCPA than merely its presumed ability to make American business executives less likely to consider bribing foreign officials – it is there to help enforce America’s geopolitical hegemony. In my paper, I will aim to explore the validity of this suggestion, while showing that it is possible to defend the appropriateness of the SEC ruling against SAP SE from both: the morally Relativist and morally Realist perspectives.
Foreign Corrupt Practices Act (FCPA)
Jurisdiction
The FCPA saw enactment in 1977 as the legal instrument of restoring public trust in the ethical integrity of American companies operating abroad. It contains two types of legally binding provisions: anti-bribery and accounting. The former is there to prevent covered subjects from trying to bribe government officials in foreign countries, as the mean of ensuring that their business in these countries remains commercially competitive (Marks, 2011). According to the Act, it accounts for the criminally/administratively punished offense, on the part of the US-based/publically traded company, to “pay money or anything of value to a foreign official or a foreign political party… for the purpose of influencing the official to obtain, retain, or direct business to any person or to secure an improper advantage”. The second type of provisions, contained in the Act, require ‘issuers’ (publically traded companies) to ensure the thoughtful transparency of their bookkeeping policies, “Issuers must make and keep books, records, and accounts which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company”. This, in turn, is supposed to help make sure that no funds are misused for any unscrupulous purposes.
There are two organizations in charge of enforcing the provisions of the FCPA – the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ). Whereas the SEC is concerned with addressing the Act’s civil accountabilities, the DOJ is in charge of pressing criminal charges against those covered subjects that violate the FCPA. According to Choi and Davis (2014), “The maximum criminal penalty for an organization that violates the anti-bribery provisions of the FCPA is a fine of up to $2 million. Civil penalties for violations of the anti-bribery provisions are limited to $16,000 per violation. Criminal penalties for violations of the accounting provisions can range up to $25 million” (p. 412). This is supposed to serve as a powerful incentive for the US-based commercial organizations to apply an additional effort into making sure that their operations in foreign countries are conducted in an ethically sound way.
Brief history
The main driving factor for the adoption of the FCPA served a public scandal that erupted in 1977. At its center were the US aircraft company Lockheed and the Government of Japan. In this year, it was revealed to the public that Lockheed used to bribe Japanese governmental officials on a continuous basis, in order to be approved as the country’s defense contractor. As the consequence, the Japanese government had to resign. Following this development, the US Congress enacted the Foreign Corrupt Practices Act (Yockey, 2013).
Initially, the FCPA’s provisions used to apply only to US-based firms. Nevertheless, as time went on, the Act began to be increasingly resorted to as the instrument of enforcing the US law extraterritorial. Such a development was caused by the fact that since the time of its introduction; the FCPA has been amended twice – in 1988 and 1998. The first of these amendments had to do with redefining the meaning of the notion ‘US-based subject’ to include foreign companies registered on the NYSE. Because of what we know about how the Act used to be applied in the past, among such companies can be named Statoil, Siemens, Daimler, BAE Systems, JGC, Tenaris, Pankesh Patel, and Alstom.
The last amendment upgraded the FCPA to be seen as nothing short of de facto international law, because since 1988 the concerned Act began to apply extraterritorially to foreign-based corporate entities, as much as it does to American citizens and privately-owned companies. The official logic behind the FCPA’s amendment in 1988 had to do with the fact that, as it was passed by the Congress in 1977, the Act was placing American companies in a disadvantaged position, as compared to their competitors from abroad (Barker, Pacini & Sinason, 2012).
The second amendment to the FCPA was brought about by the fact that in 1998, the US Congress (along with the legislative bodies of other 34 countries) ratified the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the so-called OECD Convention). One of the Convention’s provisions confirmed the legal soundness of the FCPA-induced practice of treating bribery as an ‘extraterritorial crime’ – something that resulted in expanding the range of the Act’s jurisdiction even further, in the sense of establishing the objective preconditions for it to be applied globally. As Sebelius (2008) noted, “The new amendment broadened the reach of potential FCPA bribery violations by expanding the scope of persons covered by the Act to include some foreign nationals… and extended the FCPA’s jurisdiction beyond America’s borders to allow greater enforcement efforts by U.S. prosecutors” (p. 581). Nowadays, more and more companies (especially foreign-based) find themselves being accused of violating the FCPA. Whereas, throughout the first three decades, following the initial enactment of the FCPA, the average number of simultaneous Act-related investigations carried out by the DOJ and SEC in a single year would rarely exceed a dozen, from the year 2008 onwards this number began to account for no fewer than one hundred.
Controversy
Even though there are indeed only a few doubts that the enactment of the FCPA did contribute towards combating corruption on a global scale, the concerned legislation continues to be criticized on a number of different accounts. Probably the main criticism of the FCPA has to do with the fact that despite all of its well-meaning objectives, the Act represents a violation of international law. This simply could not be otherwise. After all, the FCPA provides legal prerequisites for foreign subjects to fall under the jurisdiction of the US law, which implies that the US Government has assumed the powers of the ‘world government’ – quite contrary to the basic provisions of the UN Charter. As Leibold (2015) pointed out, “Section 78dd-3 of the FCPA exerts extraterritorial jurisdiction against foreigners, even in cases where there is only a tangential connection between the underlying criminal conduct and the territory of the United States. This kind of exercise of extraterritorial jurisdiction fails the balancing test under international law” (p. 263). It is understood, of course, that this undermines the Act’s legality rather substantially – at least as it is being perceived outside of the US.
Another major criticism of the FCPA is concerned with what many people believe accounts for the Act’s ongoing transformation. That is, it now does not quite serve the function of ensuring that American companies conduct business in an ethically sound way. Rather, the FCPA’s continual enactment allows the US Department of State to impose ‘business tax’ on the whole world. The logic behind this suggestion concerns the fact that there is indeed a good reason to deem the recent applications of the FCPA clearly discriminative because most commercial entities that have been investigated throughout the last decade consist of overwhelmingly foreign-based companies (Leibold, 2015). This, of course, raises a number of concerns about the legislation’s presumed impartiality.
Finally, we can mention that the FCPA is strongly ‘Eurocentric’, in the sense of imposing the specifically Western vision of what the term ‘corruption’ stands for upon the rest of the world.
Exemplary cases
- Siemens. As of this date, the most famous FCPA investigation involved the German company, Siemens. This company was accused of having paid a total of 1.3 billion Euros in bribes to the senior government officials throughout the world (through the years 1999-2006), in exchange for being able to sign a number of very profitable business deals in the countries of its interest. In particular, Siemens benefited rather immensely from having ‘greased up’ the most high-ranking members of the Iraqi government while the UN program “Oil-for-Food” was being implemented. In 2008, the US Department of Justice ordered Siemens to pay $800.000 in fines and to provide the assigned independent auditor with full access to its corporate documentation. Moreover, one of the Company’s former directors was sentenced to serve two years in jail and pay a fine of 108.000 Euros.
- Daimler. The DOJ 2010 investigation (under the FCPA) into the ethically questionable (from the American perspective) dealings of the German automaker Daimler proved to be just as controversial. According to the DOJ representatives, throughout the years 1998-2008, Daimler has succeeded in creating a whole system for bribing governmental officials in no less than 22 countries. The total amount of bribes, paid by this German company during the time period in question, has been estimated as high as $51 million. To avoid any further legal inquiries and the subsequent court hearings, Daimler agreed to pay $185 million in settlement fees to the American authorities.
Ethical theories
Moral Relativism
The ethical theory of moral Relativism relates to the philosophical writings of Protagoras, Baruch Spinoza, David Hume, and Friedrich Nietzsche. It is based on the assumption that there can be no universally recognized moral standard for assessing the ethical appropriateness of a particular course of action, because the ethical reasoning of every individual is highly subjective, reflecting the innate specifics of his or her ‘brain wiring’. This, in turn, suggests that the concerned mental processes cannot be subjected to any positivist inquiry. Consequently, they may not be discussed outside of whatever appears to be the currently prevalent socio-economic/cultural discourse (Tannsjo, 2007). As McDonald (2010) noted, “Proponents of relativism add that the concept of rightness depends on the individual or cultural beliefs and that the ‘rightness’ and ‘wrongness’ are meaningless notions if they are isolated from the specific context within which they have arisen” (p. 448). This, however, should not be interpreted as the indication of the theory’s ethical ambivalence. Contrary to what is commonly assumed, the proponents of moral Relativism do not deny the possibility for a particular ethical rule/regulation to attain the mainstream status. In this respect, Hayry (2005) came up with a perfectly valid observation, “It (Ethical relativism) does not say that all norms and values should be rejected… In business, ethical relativity often develops into conventional morality and unethical actions are often justified on the ‘commonly accepted practice’ argument” (p. 9). What this usually means is that it is namely up to those in charge of shaping the socio-cultural realities in today’s world to provide an ethical code for defining the varying extent of a particular activity’s ethical soundness. Plainly speaking – those who are stronger set ‘moral’ rules and enforce them upon those who happen to be weaker. Such an idea appears consistent with the Darwinian outlook on what accounts for the driving force behind the ongoing socio-cultural progress – specifically, the never-ending competition between different countries/societies.
Strengths
Probably the main strength of the ethical theory in question is that, despite its association with the ‘survival of the fittest principle, it is value-based to a significantly lesser degree, as compared to the normative models of ethics. This implies that ethical Relativists are naturally predisposed to refrain from assigning any fixed moral value to one’s behavior, without taking into consideration the whole scope of the associated external circumstances. Consequently, this allows the Relativist moral judgments to be continually ‘updated’ – something that guarantees their continual applicability.
The theory of moral Relativism can also be credited for the fact that it is scientifically legitimate, in the sense of emphasizing that the process of passing a moral judgment on a particular issue cannot be regarded as such that represents the value of a ‘thing in itself, unrelated to the affiliated society’s overall measure of socio-economic and cultural advancement. Consequentially, this implies that to be deemed appropriate, one or another code of behavioral ethics must be consistent with the mentality of those people to whom it is supposed to apply. As a popular saying goes – the truth is with the crowd and error with the individual.
Weaknesses
Among the weaknesses of moral Relativism can be mentioned:
- The fact that the concerned ethical theory fails to provide any practically useful definitions for what is ‘right’ and what is ‘wrong’, within the context of how two or more cultures interact with each other.
- The theory’s insistence that there are no fundamentally intrinsic reasons for people to be willing to observe the provisions of a particular ethical code. What this means is that the only effective motivations for a person to indulge in ethically sound behavior must be necessarily reflective of his or her selfish agenda – something that undermines the validity of the very term ‘ethics’.
Moral Realism
As of today, there is no universally accepted definition as to what the idea of moral Realism (associated with the names of John McDowell, Geoffrey Sayre-McCord, and Richard Boyd) stands for. Nevertheless, it is specifically the definition provided by Delapp (2009), which appears to be the most comprehensive, “Moral realism supports the conjunction of the following three propositions. First, moral statements are truth-apt. Second, at least some moral statements are in fact true. Third, to say that a statement is true is to say that it bears a correspondence to features of the world that exist independently of the evidence or beliefs of anyone or everyone” (p. 2). [Truth-apt are the sentences used to affirm or refute a particular proposition, with respect to the conventions of what Realists refer to as ‘global (universally applicable) ethics’]. The reason for this is that it correlates with the main conceptual premise of the ethical theory in question – people’s endowment with the sense of morality is something that allows them to be referred to as humans, in the first place. What it means is that morality is a fully objective category. Therefore, the fact that the sense of morals in some individuals appears rather weakened cannot possibly be referred to as the proof that one’s ethical leanings are predetermined to remain very subjective. Rather, it should be seen reflective of these individuals’ lessened humanness – something that implies the full objectivity of ‘moral facts’, even if we assume that they exist in the solely metaphysical domain. This explains the Realist take on ‘moral commonsense’. According to the theory’s advocates, it represents the main principle of how socially integrated individuals go about addressing life challenges, “Moral commonsense is what comes to us universally as the deepest and inescapable elements of all possible experience… Philosophies which deny these hard-core (moral) commonsense elements… are inescapably incoherent and irrational because they demand that we ignore or deny facts which we deeply know to be true” (Mesle, 2005, p. 137). To a Moral Realist, it matters very little whether he or she can justify its moral stance rationally – the solemn thing of importance, in this respect, is that it is only by assuming such a stance that one can achieve self-actualization, and to consequently feel ‘real’, in the sense of being a morally upstanding person.
Strengths
The ethical framework of moral Realism reflects a well-known fact that most people indulge in moral decision-making on an intuitive level. What it means is that when exposed to the Realist judgment, regarding a particular ethics-related subject matter, they will likely find it convincing. Another strong side of the ethical theory in question is that it is thoroughly practical, in the sense of providing intuitively sound and quick solutions to moral disagreements.
Weaknesses
The theory’s main weakness is that, even though it indeed may prove helpful, as the instrument of addressing a particular moral dilemma, it does very little to explain the actual process of how people end up disagreeing on the matters of ethics, in the first place. What is even more – there is simply no way to prove the existence of ‘moral facts’ (as ‘things in themselves) empirically. As a result, moral Realism is being often referred to as nothing but yet another value-based irrational belief.
Why was the FCPA needed?
Moral Relativism
As it was mentioned earlier, regarding the theory of Moral relativism, its supporters believe that there can be no ‘universal morality for all, simply because different people tend to perceive the significance of the ethically relevant issues differently. At the same time, however, Moral relativists do admit that there is a necessity for the basic rules of ethically sound conduct to be unified to an extent – especially given the social implications of the ongoing process of Globalization. In its turn, this can be achieved by the mean of those presently in control of the global socio-cultural discourse forcing everybody else to accept their moral values – pure and simple. As of today, the US continues to enjoy dominance in the world, which is why it is natural for the FCPA to be applied extraterritorial. The logic behind this suggestion is as follows:
The reason why most Americans continue to enjoy comparatively high standards of living is that, as the global economic realities indicate, these people are in the position to afford to consume three times as much as they actually produce. What enables such a situation to persist is the fact that the US dollar serves as the world’s only reserve currency – meaning that FRS can trade valueless green paper with the images of US Presidents for valuable natural resources all over the world. The exploited naturally perceive this state of affairs as‘ unjust’, but it is fully ‘just’ for American citizens, as the actual beneficiaries – regardless of what happens to be their political, ethnic, or cultural background. In order to preserve the current status quo, in this respect, the US must apply its legal authority extraterritorial on a periodic basis. In its turn, this presupposes that very little regard should be given to the laws/national interests of dependent countries, such as the countries of the EU, for example (so that they never consider ‘rebelling’). The FCPA comes in rather handy, in this respect – because of it, the DOJ and SEC can harass just about any foreign company around the world, after having claimed it ‘corrupt’. In its turn, this helps to make sure that: a) the unwanted competition from foreign companies is effectively dealt with; b) the rich and powerful in the peripheral countries are discouraged from trying to undermine America’s continual dominance. Thus, America’s hegemony may last unopposed, which will allow most people in this country to enjoy life – this serves as the best ethical justification for the continual enactment of the FCPA.
Moral Realism
When assessed from the perspective of moral Realism, the FCPA will appear fully justified, as well. The rationale behind this suggestion can be formulated as follows:
There can be only a few doubts that bribing foreign officials is morally inappropriate – had it been not the case, people would not be experiencing a deep-seated sense of shame for having indulged in the concerned activity. And yet, this appears to be exactly the case. Even in counties where bribe-taking/receiving is culturally enforced (such as China), the ‘mutually beneficial exchange of gifts’ (guanxi) is done inconspicuously. At the same time, however, corruption has always been an integral part of social life, even in the most civilized countries, which implies that there must be some mysterious aspects to the issue in question. The best proof, in this respect, is that, regardless of how emotionally comfortable a particular person may appear while giving or receiving a bribe, he or she still remains morally disgusted by what is going on – even when not realizing it consciously. This explains the main justification for the continual enactment of the FCPA – the concerned Federal law is not there to solely punish companies for deploying ethically questionable business strategies to gain a competitive advantage in the foreign market. Rather, it is there to awaken ‘sleeping conscientiousness’ in businesspersons on a worldwide scale – that it, regardless of the specifics of these people’s national affiliation. After having heard of FCPA investigations, these individuals will be much more likely to refrain from acting ‘corruptly’ themselves – all due to their realization (induced by the FCPA) of the moral inappropriateness of this type of behavior.
FCPA case (SAP SE)
On February 1, 2016, the SEC announced that the German-based manufacturer of computer software, SAP SE was to pay $3.7 million as compensation for having failed to conduct business (in Panama) in accordance with the FCPA’s provisions. In particular, “An SEC investigation found that SAP’s deficient internal controls allowed a former SAP executive to pay $145,000 in bribes to a senior Panamanian government official and offer bribes to two others in exchange for lucrative sales contracts” (U.S. Securities and Exchange Commission, 2016, para. 2). The scheme involved qualifying one of the Company’s partners in Panama to receive unusually high (up to 82%) discounts on the lines of SAP SE products. In its turn, this allowed the concerned Panamanian operator to use the supposedly ‘saved’ funds to open an offshore account, out of which the Panamanian high-ranking government officials were being paid bribes. The SEC qualified the incident as the indication that “SAP failed to devise and maintain a sufficient system of internal accounting controls” (U.S. Securities and Exchange Commission, 2016, para. 9). In addition, the SEC proceeded to press criminal charges against one of the Company’s senior executives Vicente Garcia – the development that resulted in this person being sentenced to serve 22 months in prison.
SAP SE is the first software-designing company to have been found guilty under the FCPA, which suggests that the Act’s enforcers actively strive to expand the range of its applicability. As Silverstein pointed out, “The FCPA has certainly arrived in Silicon Valley. It’s there to stay” (2015, para. 17). Moreover, Garcia’s indictment confirms the validity of the suggestion that as time goes on; DOJ and SEC address their FCPA-related responsibilities in a much more aggressive manner, as compared to what used to be the case even as recent, as two decades ago. According to Pacini (2012), “Over 80% of case filings in the decade ending in 2009 occurred during the years 2005-2009… Specifically, the majority of the cases filed contributing to this rise have involved criminal cases” (p. 553). The case of SAP SE is particularly notable, in this respect. The reason for this is that, in full accordance with the mentioned trend, the Company refused to consider defending its good name in the court of law while preferring to pay out the specified amount to have the case ‘settled’. In its turn, this validates the earlier suggestion that, as of today, the FCPA is best discussed as the legal instrument of forcing commercially successful foreign firms to pay ‘business tax’.
Why did the SAP SE act unethically?
Moral Relativist perspective
As it was pointed out earlier, moral Relativism presupposes the absence of the universally applicable moral criteria for assessing the ethical soundness of a particular course of action. Consequently, this implies that when it comes to evaluating the case of SAP SE from the moral Relativist perspective, one will need to remain fully aware of what kind of objective this Company’s indictment was indented to serve. The reason for this is that moral Relativists do not have any illusions, as to the highly subjective nature of the morality-based legal judgments – the claim that a particular foreign company acts unethically only remains valid for as long as it serves the practical purpose of contributing to the maintenance of the currently dominant discourse of America’s hegemony. Had it been otherwise, the so-called ‘lobbying’ (an integral part of the discourse Americana) would have been recognized for what it really is – a fully legalized system of bribery in the US. This, however, is not going to happen, because such a hypothetical development would result in undermining America’s claim of being ‘divinely ordained’ to arbitrate morality-related issues on this planet. Therefore, the actual reason why SAP SE has been found guilty of having acted ‘corruptly’ in Panama has very little to do with the fact that one of its top managers was caught trying to bribe some bureaucrats from this country’s government. Rather, this particular occurrence is best explained, regarding what kind of company SAP SE really is. And, it will not prove too challenging to gain actual insight, in this respect. SAP SE is the company, which for the duration of the last few years has been actively involved in investing in different infrastructural projects in Russia – hence, transgressing the policy of economic sanctions imposed against this country by the US (Gazprom, SAP, 2016). This fact is well known in business circles, just as the fact that it was namely due to the Company’s reputation as ‘Russia’s friend’ that it became the subject of FCPA investigation. Apparently, the SEC decided to investigate SAP SE to show the world what is going to happen to any Western-based public company that defies the US policy of trying to undermine Russia’s power – pure and simple. Therefore, when assessed from the perspective of moral Relativism, the concerned development does make much sense, as it contributes to the legitimization of the American outlook on what accounts for the ethical/unethical manner of conducting business. The legitimacy of this suggestion can be substantiated as follows:
According to the proponents of moral Relativism, while seeking to validate their moral beliefs in the eyes of others, people often strive to ensure that these beliefs evoke the notion of ‘omnipotence’ (Byrne, 2014). Apparently, the application of such an approach, on their part, can be referred to as the actual source of ‘relativist ethics’, because human beings are unconsciously predisposed to perceive the most physically imposing of them as those who represent ‘natural’ authority. The same applies to countries – it is specifically the most powerful of them that are in the position to define the dynamics in the domain of ethics on a global scale. Therefore, there is nothing odd about the fact that, after having been ordered to pay $3.7 million, SAP SE decided not to put up any legal resistance – despite the fact that the Company was more than capable of doing it. The Company’s officials took the very fact that SAP SE was singled out by the SEC to be investigated against, as the indication that the US indeed has some valid reasons to worry about this German company. Therefore, they decided to do as ordered – something that once again justifies the ethical appropriateness of the SEC’s ruling. This alone serves as the best proof that SAP SE did act unethically – regardless of what may be the Company’s excuses, in this respect. After all, it does correlate well with the ethically Relativist idea that, even though there is no ‘universal’ morality for all, it is namely the morality of those who can impose it upon others forcibly that is considered ‘mandatory’. In other words, to be considered ethically sound, a legal verdict must be perceived indisputable – hence, naturally causing its subjects to accept it without trying to contend the verdict’s practical implications because such a hypothetical development would only make the situation worse. In this respect, the case of SAP SE is exemplary. The very fact that this company agreed to pay the assigned fines without questioning their legality serves as the best proof that it did deserve to be penalized – even if the punishment does not appear completely unbiased.
Moral Realist perspective
Once subjected to the Realist analysis, the SEC ruling against SAP SE will appear ethically justified, as well. The rationale behind this suggestion is apparent – moral Realism presupposes that one’s ethical judgments never cease being reflective of some objective ‘moral facts’, which have nothing to do with his or her tendency to remain strongly influenced by external circumstances while in the process of moralizing. One of these ‘moral facts’ can be considered the assumption that bribery is wrong – not only because of this activity’s strongly corruptive effect on society but also because it is morally repulsive as a ‘thing in itself. By having failed at ensuring the integrity of its ‘internal controls’, SAP SE has helped to create the objective preconditions for one of its top managers to be tempted to abuse his executive powers. However, it is not only that the Company’s ethical misconduct resulted in turning Panama into even more corrupt of a country than it already is – Garcia’s behavior did contribute towards making this world a much more miserable place to live, as a whole. After all, according to the proponents of moral Realism, it is specifically people’s unwillingness to act in full accordance with the mentioned ‘moral facts’, which is the source of just about every evil on this Earth. Therefore, it will not be much of an exaggeration to suggest that the FCPA case of SAP SE is, in fact, illustrative of what the theory of moral Realism is all about. This suggestion’s validity can be substantiated in relation to the following:
- The FCPA investigation in question resulted in bringing about civil and criminal charges against SAP SE. This correlates with the theory’s provision that there are not only descriptive but also normative aspects to how people perceive the very notion of ‘ethics’. Because SAP SE deliberately violated a number of ‘moral facts’ (specified by the FCPA), it was only logical for the Company to end up suffering the consequences – the development that confirms the Realist outlook on the metaphysical and yet fully objective nature of such ‘facts’.
- The punishment that SAR SE had to face was anything but overly severe. After all, given the Company’s sheer size, the sum of $3.7 million in settlement fines could never prove overly substantial for it. The same can be said about Garcia’s criminal sentence – the received prison term (less than two years), on his part, suggests that he got off easy. What it means is that the SEC officials did not aim as much at punishing SAP SE, as they did at trying to awaken the sense of ‘moral conscientiousness’ in the Company’s executive officers, so that they would refrain from trying to bribe foreign officials in the future. This is again best explained within the conceptual framework of the theory of Moral Realism, which promotes the idea that even those who perpetrate ethically wicked deeds are forced to do so under the pressure of external circumstances.
- The FCPA-covered investigation of SAP SE came as a result of the SEC has invoked the principle of extraterritoriality. This can be seen as yet another indication of the fact that, just as the theory of moral Realism implies, ‘moral facts’ are thoroughly objective and not affected by whether people in a particular part of the world are willing to refer to them as such or not.
Conclusion
In light of what has been said earlier, it appears that there is a strongly defined utilitarian intricacy to the practical deployment of just about any ethical theory. After all, as it was illustrated throughout the paper’s previous sub-chapters, it is indeed possible to justify the moral appropriateness of FCPA cases even from the perspectives of two mutually contradicting ethical theories, such as moral Relativism and Moral Realism. What this means is that the moral evaluation of a particular course of action undertaken by a company is necessarily reflective of whatever happened to be the personal agenda of those in charge of coming up with such evaluation. It is understood, of course, that this conclusion supports the validity of namely the Relativist outlook on ethics and on what should be deemed its social significance. Apparently, the functioning of the justice system in America cannot be discussed as such that merely serves the purpose of encouraging citizens (and now foreigners) to refrain from indulging in unethical (criminal) behavior. Rather, it is there to help the US to maintain its political, economic, and military dominance in the world, which is the main reason why the FCPA was enacted, in the first place. Therefore, the notion of ‘ethics’ is bound to remain both: highly subjective and strongly instrumental. I believe that this finding is fully consistent with the paper’s initial thesis.
References
15 U.S.C. §78dd-1(a).
15 U.S.C. §78M(b)(2)(A) (2008).
Barker, K., Pacini, C., & Sinason, D. (2012). The foreign corrupt practices act: A law worth revisiting. Review of Business, 32(2), 44-57.
Byrne, E. (2014). Towards enforceable bans on illicit businesses: From moral relativism to human rights. Journal of Business Ethics, 119(1), 119-130.
Choi, S., & Davis, K. (2014). Foreign affairs and enforcement of the Foreign Corrupt Practices Act. Journal of Empirical Legal Studies, 11(3), 409-445.
Delapp, K. (2009). The merits of dispositional Moral realism. Journal of Value Inquiry, 43(1), 1-18.
Gazprom, SAP to jointly create Russian software manufacturing. (2016). Russia Business News. Web.
Hayry, M. (2005). A defense of Ethical relativism. Cambridge Quarterly of Healthcare Ethics, 14(1), 7-12.
Leibold, A. (2015). Extraterritorial application of the FCPA under international law. Willamette Law Review, 51(2), 225-267.
Marks, J. (2011). Thirteen Steps to FCPA Compliance. CPA Journal, 81(7), 11-13.
McDonald, G. (2010). Ethical relativism vs absolutism: Research implications. European Business Review, 22(4), 446-464.
Mesle, C. (2005). What shall we say to the torturer? Moral realism, conscience, and human nature. American Journal of Theology & Philosophy, 26(1), 129-145.
Pacini, C. (2012). The Foreign Corrupt practices Act: Taking a bite out of bribery in international business transactions. Fordham Journal of Corporate & Financial Law, 17(2), 545-589.
Sebelius, N. (2008). Foreign Corrupt Practices Act. The American Criminal Law Review, 45(2), 579-606.
Silverstein, E. (2015). Ex-SAP employee pleads guilty to FCPA violation. Inside Counsel. Breaking News. Web.
Tannsjo, T. (2007). Moral relativism. Philosophical Studies, 135(2), 123-143.
U.S. Securities and Exchange Commission. (2016). SEC charges software company with FCPA violations. Web.
U.S. v. Siemens Aktiengesellschaft, No. 08-CR-367-RJL (D.D.C. 2008).
Yockey, J. (2013). Choosing governance in the FCPA reform debate. Journal of Corporation Law, 38(2), 325-380.