We found a match
Your institution may have access to this item. Find your institution then sign in to continue.
- Title
Multijurisdictional Bribery Law Enforcement: The OECD Anti-Bribery Convention.
- Authors
SPAHN, ELIZABETH K.
- Abstract
For the first twenty years, modern global anti-bribery law reform efforts were unilateral. The United States enacted the Foreign Corrupt Practices Act of 1977 (FCPA), criminalizing the bribing of foreign officials in order to obtain business. In 1997, the major multilateral legal framework the Organisation for Economic Cooperation and Development (OECD) Anti-Bribery Convention was negotiated. The Convention has been ratified by thirty-nine states, comprising nearly all the major world economic powers. Brazil joined the Convention in 2002 and Russia joined the Convention in 2012. Although China is not yet an OECD Convention member state, it enacted domestic laws criminalizing bribery of foreign officials abroad in 2011. India is the only major global economic power that apparently still permits bribery abroad as of 2012. During the first decade of the Convention's operation, country peer review processes under the auspices of the OECD Convention Working Group, assisted the thirty-plus jurisdictions in eliminating favorable tax treatment for bribery abroad and in enacting domestic legislation criminalizing (or its equivalent under the individual state's legal system) bribes paid to foreign officials. The success of the Convention in harmonizing formal law among member states marks an end to the period of a widespread de jure double standard in which it was illegal to bribe domestic officials, but permitted, and allowed favorable tax treatment in fourteen jurisdictions, the bribing of foreign officials. The formal rules governing the playing field have been leveled. Beginning in about 2007, the Working Group increased its focus on multilateral enforcement efforts. Enforcement is horizontal, with each state enforcing its own domestic laws. Working Group prosecutors' meetings, which include tour de table case reviews have been established, facilitating exchanges of information in these highly complex white-collar crime cases. Cooperation among member states at the prosecutorial level is a hallmark of the Convention. Where one state is unable to prosecute due to domestic political or technical legal problems, other states with jurisdiction may step in. Enforcement competition thus provides a potential hard law backstop against 'national champion' protectionist tendencies. Four landmark cases involving OECD Convention enforcement cooperation and competition prosecuting powerful multinational corporations are discussed in this Article. In the BAE case, both enforcement competition and eventually cooperation facilitated prosecutions in both the United Kingdom and the United States. The Siemens case involved enforcement cooperation between Germany and the United States. A series of cases known as TSKJ, involving five multinational corporations and potentially twelve jurisdictions, were referred to the United States by French magistrates, and ultimately involved cooperation between the French, Italian, Swiss, U.K., and U.S. authorities. The Innospec cases were highly coordinated between the United States and the United Kingdom including cooperation in sentencing, with some enforcement competition as the U.K. judge publically criticized the United States for "wholly inadequate" fines given the severity of the crimes. Enforcement of laws against bribing foreign officials involves multiple and overlapping jurisdictions. Because multinational corporations, by definition, operate across the borders of several sovereign states, many jurisdictions are potentially involved. Determining the 'nationality' of a given multinational corporation is complicated at best. Whether corporations as fictional or juridical legal persons should be subject to criminal liability at all is hotly debated in U.S. law; in some other legal systems criminal sanctions for juridical persons (corporations) are unavailable. Article 3(2) of the Convention requires "effective, proportionate and dissuasive non-criminal sanctions" in such situations. Double jeopardy and the European equivalent ne bis in idem principles are not yet well developed in crossborder criminal cases. Prosecutions by non-Convention states are not yet coordinated with Convention states' prosecutions. Five years into the enforcement phase of the OECD Convention, there is significant evidence that global anti-bribery law reform has moved from a unilateral to a multilateral law enforcement model based on a horizontal enforcement competition and cooperation. There have been notable successes in this very early phase. Multilateral law enforcement based on the Convention model is potentially useful in addressing other forms of cross-border criminal activity.
- Subjects
INTERNATIONAL cooperation on bribery; LAW enforcement -- International cooperation; ORGANISATION for Economic Co-operation &; Development; INTERNATIONAL law reform; WHITE collar crimes -- Law &; legislation; CRIMINAL liability (International law); DOUBLE jeopardy; INTERNATIONAL criminal law
- Publication
Virginia Journal of International Law, 2013, Vol 53, Issue 1, p1
- ISSN
0042-6571
- Publication type
Article