Explained: how the US uses anticorruption laws and sanctions to police the world
By Finbarr Bermingham From South China Morning Post
The cases of Patrick Ho and Sabrina Meng Wanzhou show the extraterritorial reach of US authorities
The conviction of former Hong Kong minister Patrick Ho in a New York court and the detention of Huawei’s chief financial officer, Sabrina Meng Wanzhou, in Canada have demonstrated the global reach of United States law enforcement.
Ho was convicted for money laundering and bribery, pertaining to oil rights in Chad and Uganda, on behalf of CEFC China Energy under the Foreign Corrupt Practices Act (FCPA), a US law aimed at combating bribery of foreign officials.
It does not matter that there were no American citizens involved – since 1977, the FCPA has allowed the US to become the anticorruption policeman for the whole world.
“There are a lot of instances where the total conduct has taken place outside the US, by non-US persons. It’s a non-US company and non-US government officials, going about their business outside the US. But if any of the money transited through the US, if there was a bank account that was draw on there, or if a server based in the US was used to send an email, there is jurisdiction,” said Wendy Wysong, who leads the Asia-Pacific anticorruption and trade controls practice at law firm Clifford Chance.
Eberhard Reichert, a German national and Siemens executive, was extradited to the US in 2017. He was arrested in Croatia on charges of taking part in a US$100 million scheme to bribe Argentinian officials for a contract to produce national identity cards in 1996.
The biggest case in FCPA history, meanwhile, involved the Brazilian national energy company Petrobras. It was handed a US$853.2 million criminal penalty by the US Department of Justice for bribing politicians in Brazil. Petrobras had subsequently accessed US capital markets and was, thus, deemed to be within its jurisdiction.If any of the money transited through the US, if there was a bank account that was draw on there, or if a server based in the US was used to send an email, there is jurisdiction
Neither case directly involved US entities or firms, but the wide reach of the FCPA allowed the US to intervene.
For decades, however, it is economic sanctions that have been an extension of US foreign policy. In 1940, the US led an embargo against Japan after it invaded what was then French Indochina. It led its allies in a sanctioning of Soviet grain in the late 1970s, which eventually led to a western boycott of the Moscow Olympics.
Through the years, Washington has used sanctions as a way of isolating countries such as Cuba, Russia, North Korea, Sudan and Syria from international trade. They are, unlike actions under the FPCA, overtly political and designed to exert maximum pressure on the regimes they target.
Not only are companies and individuals forbidden from trading with US entities. The dominance of the US dollar, as well as the ubiquity of systems such as Swift, the trade finance messaging system, mean there is an unofficial embargo on other countries trading with sanctioned countries too.
In 2015, Deutsche Bank, for example, was fined US$258 million for doing business with Iran and Syria. Deutsche Bank is German, but the fact that much of its business is in the US, using US dollars, means it must abide by US sanctions.
Sanctions have always been used as a tool of political leverage, but in recent years they have been deployed more aggressively, according to Tatman Savio, a Hong Kong-based partner at US law firm Akin Gump Strauss Hauer & Feld.
The US used economic sanctions to target Chinese technology company ZTE this year, after it admitted to breaking an embargo on trading with sanctioned countries. And as geopolitical tensions rise, Chinese companies can expect to be targeted again.
“In the context of China we notice several things that seem to be coalescing. The trade war and Section 301, which are designed, in part, to combat China’s access to high technology. The US government has made a serious effort, which is designed to go after the way in which China is able to access technology by different means,” said Savio.
