The Napoleonic Code, the FCPA Pause, and the Business Case for Staying Ethical.
- Tomasz Kruk
- May 6
- 5 min read
Updated: May 7
When Empires Pause, Laws Endure
When Napoleon codified French civil law in 1804, he likely didn’t anticipate that two centuries later, his “little legal engine that could” would still be rolling through courtrooms across continents. The Napoleonic Code, despite regime changes, revolutions, and even defeat at Waterloo, became the bedrock of legal systems from Europe to Latin America.
Now, in 2025, we face a legal déjà vu.
On February 10, President Trump issued an Executive Order halting the DOJ’s initiation of new Foreign Corrupt Practices Act (FCPA) enforcement actions for 180 days (renewable once). The political rationale? That the FCPA, once a pioneering shield against global corruption, has become a sword that unfairly slashes American competitiveness.
But let’s be clear: this pause is not repeal, and the FCPA is no mere tactical statute. It’s a global legal framework—one that, like the Napoleonic Code, has outgrown its original jurisdiction and become a durable template for the world... or at least for the compliance community.
So, for in-house counsel, compliance officers, and the business executives they advise, the question is not whether to adjust compliance programs—it’s how to explain, convincingly, why those programs must remain intact.
Let’s equip you to do just that..
I. The Pause: A Legal Breather, Not a Blanket Amnesia Clause
Let’s clear up a common misconception: the Executive Order didn’t kill the FCPA. It merely instructed the DOJ to hold fire temporarily while the Attorney General revises enforcement guidelines. Importantly:
The FCPA remains law, with a five-year criminal statute of limitations.
The SEC remains active, with independent civil enforcement powers.
The pause may be reversed—by a future administration or even an AG exception.
If your business is assuming this is a “compliance holiday,” consider it a holiday during hurricane season, with the barometer already falling.
II. The Napoleonic Parallel: When a Legal Code Outlives Its Creator
The comparison isn’t just poetic—it’s practical.
The Napoleonic Code didn’t just unify French law. It became the blueprint for legal modernization across more than 70 countries (inter alia: Belgium, Luxembourg, Netherlands, Italy, Spain, Portugal, Poland, Romania, Germany (Rhineland region), Switzerland, and also Mexico, Brazil, Argentina, Chile, Algeria, Vietnam, Lebanon, Egypt, Iraq, Jordan, Libya). Why? Because it offered clarity, predictability, and logic in an era of chaos.
The FCPA did something equally radical: it made bribery of foreign officials a crime even outside U.S. borders—and did so in the 1970s, when many nations still considered overseas bribery a deductible business expense.
Fast forward to 2025: (i) Over 45 nations now enforce FCPA-style laws, thanks to the OECD Anti-Bribery Convention and other agreements. (ii) Countries like the UK, France, Brazil, and South Korea have built more aggressive frameworks on the FCPA’s bones. (iii) International banks and development institutions, like the World Bank, impose anti-corruption controls modeled after FCPA principles.
Even if the U.S. stalls, the world keeps marching to the FCPA’s beat.
III. Why You Should NOT Retire Your Compliance Program Just Yet
A good compliance program is like insurance. You don’t cancel it because your local fire department is on lunch break.
Here’s what your board, CFO, or business unit leader needs to understand:
1. The FCPA Is a Global Operating Standard
Whether enforced this week or not, FCPA principles shape how companies bid, partner, and invoice across jurisdictions. Multinationals must comply not only with the FCPA but also with inter alia: UK Bribery Act (no facilitation payment exemptions, no bribery of business partners), France’s Sapin II, OECD member states’ anti-bribery regimes
Abandoning FCPA compliance now is like removing your GPS while driving through Europe—you may still be on the road, but you’ve lost your map.
2. SEC and Civil Exposure Are Alive and Well
The Executive Order did not—and cannot—bind the SEC.
With civil enforcement intact, your accounting provisions, third-party controls, and recordkeeping better be flawless. Remember, that misstating or failing to record bribes is a standalone violation. Remember also that the SEC penalties remain steep—and reputationally lethal.
3. DOJ Isn’t Actually Powerless
Exceptions can still be granted for new FCPA actions, especially those linked to organized crime or national security. Plus, the DOJ can pivot to other tools: wire fraud, money laundering, Foreign Extortion Prevention Act (FEPA).
Translation: don’t be too clever. A bribe by any other name may still land you in court.
4. Whistleblowers Haven’t Hit Snooze
Under the Dodd-Frank Act, whistleblowers can still collect bounties from the SEC for exposing FCPA-related misconduct. And they are watching. And reporting. Even now.
IV. The FCPA Guide: The World's Most Underrated Compliance Manual
Developed by the DOJ and SEC, the FCPA Resource Guide is more than best practices—it’s a compliance architecture blueprint:
Tone on the Top (or "Walk the Talk Sir")
Clear expectations for due diligence
Structured training recommendations
Risk assessment methodology
Investigations protocols
Monitoring, auditing rules
For compliance officers, this guide is both shield and sword: it helps deter misconduct, and if something goes wrong, it shows prosecutors that you tried—and tried hard.
It’s no exaggeration to say that companies who’ve built programs using this guide are better protected globally, even in countries where the FCPA is unknown but its principles are mirrored. You can rely on the United States Sentencing Guidelines particularly Chapter 8: Sentencing of Organizations - but the Guide is way more helpful when managing compliance programs... at least in my opinion.
V. Explaining This to Business: The Executive Talking Points
When your CEO or regional VP asks, “Do we really still need this?” here’s what you say:
“It’s not just about U.S. enforcement.” Anti-bribery laws now operate globally. Dropping compliance would be like locking your front door but leaving the windows wide open.
“Bribery is a reputational bomb.” Even without a fine, a headline can tank your stock, spook investors, or cancel a joint venture. And once that narrative takes off, no amount of litigation will un-ring the bell.
“This is a risk management function.” Compliance programs aren’t ornamental—they’re operational. They reduce exposure, control costs, and protect executives from becoming cautionary tales on LinkedIn.
“Laws don’t vanish when enforcement pauses.” Think of this as an audit-free year—not a law-free one. Anything done now can and likely will be prosecuted later.
Conclusions: Compliance is the Code That Outlasts Regimes
The Napoleonic Code didn’t need Napoleon to survive. And the FCPA doesn’t need round-the-clock DOJ attention to matter.
The global legal infrastructure built around the FCPA is durable, expanding, and embedded in how business is conducted in the 21st century. Even if American prosecutors take a breather, foreign agencies, shareholders, whistleblowers, and the court of public opinion have not.
So yes, this may be a policy pause. But smart companies won’t treat it as a pardon.
Keep your program. Train your people. Review your controls. Be the company that doesn't wait for the knock on the door to start taking ethics seriously.
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