Executive Order 14209: Suspension of FCPA Enforcement

On 10 February 2025, President Trump signed Executive Order 14209, titled "Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security” (the Executive Order). This Executive Order suspends enforcement of the Foreign Corrupt Practices Act (FCPA) for 180 days, with the possibility of an extension. During this suspension period the Attorney General is directed to “review guidelines and policies governing investigations and enforcement actions under the FCPA”.

This Executive Order addresses what President Trump perceives as the misuse of the FCPA – “by our own Government” – which, according to him, has increasingly harmed U.S. interests. The current enforcement of the FCPA is seen as obstructive to U.S. foreign policy and detrimental to the global competitiveness of U.S. companies, which the administration considers crucial to national security. The broad application of the FCPA against standard business practices abroad is deemed inefficient and counterproductive to U.S. economic objectives.

The Executive Order and the “Pause” on enforcement

According to various legal analysts, the Executive Order aims to enhance the competitive position of U.S. companies by shielding them from what President Trump perceives as excessive and unpredictable FCPA enforcement. The Executive Order instructs the Attorney General to refrain from initiating any new FCPA investigations or enforcement actions for a period of 180 days, unless an exception is made. During this period, all existing FCPA investigations and enforcement actions will be reviewed to ensure they fall within appropriate boundaries and preserve presidential prerogatives in foreign policy. Following this review period, updated guidelines will be issued to promote American economic interests and the efficiency of federal law enforcement resources.

For companies or individuals currently under FCPA investigation, the pause presents an opportunity to engage with the U.S. Department of Justice (DOJ) to address perceived enforcement overreaches.

Risks for companies despite the suspension

Despite the suspension of FCPA enforcement, companies involved in international operations – particularly in jurisdictions prone to bribery – must remain vigilant for several reasons. First of all, we understand the suspension does not impact the Securities and Exchange Commission's (SEC) authority to continue enforcing FCPA accounting provisions, which require U.S. issuers to maintain accurate records and internal controls to prevent the concealment of illicit payments. Secondly, misconduct occurring today may be subject to investigation or enforcement action under a future administration with different priorities. Other national prosecution services, including those in Europe, may intensify anti-corruption enforcement efforts in response to the U.S. pause.

Potential impact on Dutch investigations

The Dutch Public Prosecution Service (DPPS) closely monitors international developments in anti-corruption enforcement, particularly in response to U.S. actions. The DPPS actively participates in cross-border corruption cases and collaborates with international counterparts to combat multi-jurisdictional corruption. For example, the DPPS has taken part in Joint Investigation Teams (JITs) with other nations to combat serious organised crime and corruption. The agency also follows specific guidelines for investigating and prosecuting foreign corruption cases (e.g., the Aanwijzing opsporing en vervolging buitenlandse corruptie).

Given this active role, the DPPS may step in to address enforcement gaps left by the DOJ's suspension of the FCPA. Historically, the DPPS has collaborated with the DOJ on extra-jurisdictional corruption cases. Two notable cases illustrate this cooperation.

  1. We observed this in a case where a U.S. based company bribed officials in Vietnam, Indonesia, and India to secure chemical catalyst business with state-owned oil refineries. The company employed intermediaries to facilitate these bribes, resulting in approximately USD 98.5 million in profits. In 2018, the company self-disclosed these offenses to U.S. authorities, prompting a criminal investigation in the Netherlands due to the potential involvement of their Dutch subsidiary. The company cooperated with the DPPS and the Anti-Corruption Center of the Fiscal Intelligence and Investigation Service (FIOD) during the investigation. The SEC and the DPPS collaborated closely on this case. The company agreed to pay over USD 218 million to the DOJ and the SEC to resolve their investigations into violations of the FCPA. Following consultations with U.S. authorities, the DPPS dismissed their case. Due to the company’s cooperation and implementation of compliance measures, it received a 45% reduction on the criminal penalty.
  2. In a second instance of collaboration between U.S authorities and the DPPS, a Dutch company – publicly traded on Nasdaq – admitted to conspiring to make over USD 114 million in bribery payments to a government official in Uzbekistan to facilitate its entry and continued operation in the Uzbek telecommunications market. The company agreed to pay a criminal penalty of over USD 230 million to the United States, including USD 40 million in forfeiture. Additionally, the company agreed to a total of USD 375 million in disgorgement of profits and prejudgment interest, to be divided between the SEC and the DPPS. Furthermore, the company agreed to pay the DPPS a criminal penalty of USD 230 million.

Conclusion

The long-term consequences of the US policy shift on anti-corruption enforcement are uncertain, but the suspension of FCPA enforcement has significant international implications. Historically, cooperation between the US and the DPPS has been critical in multinational corruption cases. Without FCPA enforcement, cooperation with the DPPS may cease, creating an enforcement gap.

The Dutch authorities can still enforce anti-corruption laws on their own. U.S. companies with subsidiaries or interests in the Netherlands should be aware of the ongoing enforcement risks under Dutch law, particularly for cross-border bribery.

The Dutch Criminal Code criminalises both public and private bribery. Companies may be liable for bribery committed by employees, directors, officers, subcontractors and other agents.

To mitigate the risks, companies should implement robust compliance programmes. A well-structured compliance framework reduces the likelihood of bribery and can reduce a company's liability if violations occur.

Please note we are Dutch white collar crime lawyers, and thus not U.S. attorneys. Our understanding is based on publicly available information. If you need advice concerning the FCPA, we recommend consulting a licensed U.S. lawyer.