The dynamic of general compliance with the OECD anti-bribery convention: two interpretative approaches

Abstract

The way in which people understand the dynamic of signatories’ enforcement of the OECD Anti-Bribery Convention determines the way in which they formulate policy recommendations, and a comprehensive understanding of the dynamic of signatories’ Convention enforcement demands the coordination of two different analytic approaches—the rational-choice approach and the institutional approach. The popular rational-choice approach in current literature highlights the “under-enforcement” problem of the Convention, assumes the decisive influence of signatories’ self-seeking nature on Convention enforcement, and seeks to identify the structural failure of the anti-bribery collaboration which generates unsatisfactory cost-benefit calculations and encourages signatories to shirk. While a branch of the rational-choice account converges on the failure of the existing monitoring system in deterring free riders by borrowing wisdom from cooperation theories, it fails to illustrate that the anti-bribery collaboration by its very nature is incompatible with a centralized monitoring approach—a conventional effective solution to cooperation dilemmas. To fill this gap, Part I & II of this study lays bare the incompatibility of a centralized monitoring approach with the anti-bribery collaboration based on the findings of current rational-choice account and frames a decentralized monitoring system as an alternative. On the other hand, Part III of this study argues that another face of the dynamic of Convention enforcement—the developmental reality in leading jurisdictions, is also noteworthy. An institutional approach which highlights the relevance of favorable domestic institutional contexts to robust Convention enforcement is proposed as a counterpart to the rational-choice approach. By analyzing the case of the SEC’s increasingly zealous enforcement of the FCPA in the US during the period from the 1980s to the 2000s, this study concludes that local agencies’ adherence to other official duties in an ever-evolving institutional context may result in an effect of “unconscious enforcement” of anti-bribery laws.