U.S. anti-bribery enforcement efforts have come under heightened scrutiny, just as two new laws are expected to launch those efforts into overdrive.

The Foreign Corrupt Practices Act, which makes it a crime for U.S. companies and their employees to pay bribes to foreign officials to obtain business abroad, ought to be modified to "make clear what is and what is not a violation," according to a paper commissioned by the U.S. Chamber of Commerce's Institute for Legal Reform calling for amendments to the law.

Enforcement of the anti-bribery statute by the Department of Justice Fraud Section and the Securities and Exchange Commission has exploded over the past decade.

"More enforcement actions are being brought than ever before, fines and penalties have risen dramatically, and the government has shown an increased willingness to seek jail terms for individual defendants," authors Andrew Weissmann and Alixandra Smith, of the law firm Jenner & Block, write in the paper titled, "Restoring Balance: Proposed Amendments to the Foreign Corrupt Practices Act."

Moreover, two new laws suggest "a more hostile enforcement environment going forward than the U.S. business community has yet seen," the authors say.

The Bribery Act passed by the United Kingdom and the whistleblower provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act are further expected to up the FCPA ante for companies. A Dodd-Frank provision that will reward whistleblowers up to 30 percent of recoveries over $1 million has sparked fears among public companies that employees will rush to report misconduct to the Securities and Exchange Commission instead of reporting it internally. The U.K. Bribery Act, which takes effect in April, goes even further than the FCPA, by creating a strict liability offense for companies that fail to prevent bribery, unless they can prove they've instituted "adequate procedures" to prevent it.

The Chamber paper calls for five reforms:

The addition of an affirmative compliance defense, like the one under the Bribery Act, to permit companies with strong compliance programs to avoid criminal liability for FCPA violations committed by rogue employees or agents;

A limitation of a company's criminal successor liability for the prior actions of a company it has acquired, with guidance on what constitutes "sufficient" due diligence. For instance, the authors say guidance could be created that spells out general due diligence steps akin to Section 8 of the U.S. Sentencing Guidelines;

The addition of a "willfulness" standard for corporate criminal liability that would require the government to prove a company acted with knowledge that its conduct was unlawful (the FCPA includes such a standard for individuals);

Limits on a parent company's liability for acts of a foreign subsidiary in cases where it didn't authorize or know about improper payments; and

Clarification of the definition of "foreign official," to provide guidance on the types of entities that qualify as instrumentalities of a foreign government.

The Department of Justice declined to comment.

The Chamber paper is one of a number of proposals pushing for changes in FCPA enforcement in recent months. Others have called for a leniency policy for self-reporting and cooperation by companies that uncover FCPA violations.

The latest call for reform comes on the heels of a review by a Working Group of the Organization for Economic Cooperation and Development commending U.S. anti-bribery enforcement. The OECD praise also came with suggestions for improving U.S. enforcement, including a recommendation for enforcers to consider private sector views in their periodic review of policies and their approach on facilitation payments. The OECD also said the U.S. could increase transparency by making more information publicly available on the use of non-prosecution agreements and deferred prosecution agreements.

The Chamber paper cites concern that the DoJ "effectively serves as both prosecutor and judge in the FCPA context," because it both brings FCPA charges and effectively controls the disposition of the FCPA cases it initiates. Since few companies are willing to risk litigating an FCPA enforcement action, court opinions on the meaning of the FCPA's provisions are rare.

The authors point to the conviction of Frederic Bourke and the plea deal entered into by BAE Systems as examples of how far the DoJ has "pressed the limits of enforcement."

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