Is US playing dirty pool on behalf of American companies?

Is US playing dirty pool on behalf of American companies?
By: Rachel Marsden

PARIS -- A new documentary premiering this week on French television suggests that the United States is using its Foreign Corrupt Practices Act to strong-arm foreign companies into unfavorable transactions benefiting U.S. companies.

"Guerre Fantôme" (or "Ghost War") highlights state-backed French multinational Alstom's sale of its power and grid business to American giant General Electric after Alstom was fined $772 million for violating the Foreign Corrupt Practices Act's anti-bribery provisions.

Under the FCPA, foreign companies with a presence on Wall Street (or even foreign companies whose emails pass through a U.S. server, or who conduct transactions through a U.S. bank) have been ruled to fall under American jurisdiction. If an employee of a foreign company is caught bribing non-U.S. officials in some other country -- even through a third party -- then that employee, as well as his company's leadership, can be prosecuted by the U.S. Department of Justice.

It's no secret that large multinationals operating overseas occasionally grease the wheels to get things done. It's a ubiquitous practice. But of the 10 largest fines ever leveled under the FCPA, only three involved American companies. This raises the question of selective prosecution, and whether the FCPA is being used by the U.S. government as an instrument of economic warfare against global competitors.

"Guerre Fantôme" examines the possibility of a connection between Alstom's $772 million fine in 2014 and General Electric's acquisition of a business that has been described as a key element of French economic sovereignty. With the sale of this critical component of France's nuclear energy supply chain to American interests, France no longer has full control over its own power generation or its ability to export this know-how.

While the amounts of the FCPA fines may not seem like a great deal of money for a large multinational company, lurking behind these settlements is the threat of criminal prosecution and possible prison time for corporate officers -- up to 15 years. The last thing that any CEO or board member wants to see is an Interpol notice prohibiting him from leaving his country for fear of arrest and extradition to the U.S. So when an American multinational makes a business offer to the leaders of a company under the threat of FCPA prosecution, those company leaders might be more receptive than they would be under normal circumstances.

"Guerre Fantôme" also notes a correlation between General Electric corporate acquisitions and FCPA prosecution. For example, the British company Amersham and the U.S.-based Ionics were acquired by GE as they wrestled with charges that they paid kickbacks to Iraq in order to obtain contracts under the U.N. Oil for Food Program. American companies such as oil and gas business Vetco Gray and airport security company InVision Technologies also faced FCPA prosecution as they were being acquired by GE.

By using the FCPA as a tool of selective prosecution, the U.S. government can choose winners and losers in the so-called free market. On the international playing field, such tactics can weaken companies of strategic national importance to the point where they're vulnerable to ambulance-chasing from interested buyers. And when the buyer has close relationships to the U.S. government in critical sectors such as defense and technology (as is the case with GE), it calls into question the extent to which free-market and limited-government values are truly practiced.

"Guerre Fantôme" conveys the message to other countries that Uncle Sam's long arm and invisible hand are mucking around in the marketplace to the detriment of the international community.

French President Emmanuel Macron, who was serving as France's minister of economy, industry and digital affairs during the Alstom deal, has shown great respect for the principles of limited government and free-market enterprise. If the U.S. government is perceived to be doing the bidding of American companies, the citizens of other countries will call upon leaders such as Macron to ensure that their economic interests are protected. The U.S., once seen as a bastion of free-market capitalism, will face backlash abroad if it does serious damage to foreign economies through state interventionism. It's a bad look for America.