Anti-bribery Legislation Research Articles

Генезис законодательных основ противодействия взяточничеству в Соединенном Королевстве Великобритании и Северной Ирландии

Objective: to analyze the formation and development of the UK anti-bribery legislation for possible use of foreign regulations when reforming the Russian anti-corruption legislation.Methods: as the methodological basis of the research, the author used various general scientific techniques and methods of cognition: modeling, analysis, synthesis, formal-logical approach, and specific scientific methods.Results: the author highlights in detail the program approaches and regulatory legal acts of the United Kingdom regulating its anti-corruption policy in the field of bribery, that ensure a productive combination of legal and social measures to counter the phenomenon under consideration. In the course of the research, the author comes to the conclusion that, in modern conditions, it is relevant to study law enforcement and legislative experience in combating bribery in the UK as one of the leading states that are most actively engaged in legislative activities in the field of anti-corruption. Until recently, the legal framework for struggling against corruption in the UK was built around a number of regulatory legal acts that had equal legal force and were sources of statutory law. The United Kingdom Bribery Act 2010 entered into force on 1 July 2011 and replaced a group of previous anti-bribery laws in the United Kingdom. In many aspects, the law goes beyond the scope of theU.S. Foreign Corrupt Practices Act of 1977 in many ways, as it also criminalizes intermediary payments and corruption in the private sector. This law is distinguished from previous regulatory legal acts by clear structural characteristics of bribery and innovative solutions to minimize and eliminate this phenomenon.Scientific novelty: this paper is the first to substantiate the positive foreign legislative experience in countering bribery in the UK, which can be used not only to improve national legislation, but also to change international legal norms in this area. In the context of globalization, the developed world community is becoming increasingly aware of the scale ofconsequences caused by the activities of corrupt government structures. The modern legislative frameworks in the field of fighting corruption in the UK, which have identified a number of new types of offenses, help to optimize the activities of the British law enforcement agencies and minimize corruption.Practical significance: the main provisions and conclusions of the work can be used in scientific, pedagogical and law enforcement activities when considering issues related to the improvement of the Russian anti-corruption legislation.

Poverty, corruption, trade, or terrorism? Strategic framing in the politics of UK anti-bribery compliance

What explains longstanding UK non-compliance with international anti-bribery norms? Drawing on evidence from a comparative study of state compliance with the Organization for Economic Cooperation and Development (OECD) anti-bribery Convention and building on the literature on ‘framing’ in Sociology and International Relations, this article identifies and illustrates the impact of strategic policy framing on UK anti-bribery policy in the years following the United Kingdom’s commitment to criminalize transnational business bribes, in 1997. The research examines the way in which anti-bribery proponents and opponents framed the practice of transnational bribery differently across four distinct policy contexts in the United Kingdom: international development and poverty reduction, domestic anti-corruption, strategic trade, and—following 11 September 2001—international anti-terrorism. The analysis shows that: (a) policy advocates’ choice of frame crucially affected the timing and scope of UK anti-bribery legislation and the extent of UK (non)compliance with international anti-corruption law; and (b) the expedient frame was not necessarily the most conducive to full compliance.

The supply and demand sides of corruption: Canadian extractive companies in Africa

ABSTRACTWith the rapid expansion of Canadian investment in extractives around the world, it is perhaps not surprising that Canada’s reputation as a low-corruption country has faltered: Canada currently ranks ninth internationally in Transparency International (TI)’s corruption perception index, down from sixth in 2010, and sixth, down from first (i.e. best), in 2009 in TI’s Bribe Payers index. This article presents the preliminary findings of our ongoing research regarding both the demand side (that is, the request for bribes, principally by foreign officials) and the supply side (that is, the giving of bribes, principally by corporations) of corruption. We have examined Canadian mining companies operating in Ghana and Burkina Faso and have identified 10 “tensions” which need to be acknowledged in public policy formulation. We note that Canada is implementing policies to reduce supply-side corruption (e.g. by adopting anti-bribery legislation and guidelines for corporate social responsibility) but recommend that more be done, especially oversight of anti-corruption laws by Parliament. We also recommend that mining companies undertake ex-ante corruption risk assessment and develop proactive corporate anti-corruption policies. And, finally, while host countries have anti-corruption laws, implementation is weak. Global affairs could usefully support stronger parliamentary oversight in these countries.

Bribery and Cross-border Acquisitions

While much attention has been paid to the role of foreign bribery in cross-border mergers and acquisitions, the evidence to date has been primarily anecdotal. I provide the first large-sample evidence that acquirers’ ability to bribe determines their engagement in the cross-border transactions. Using the OECD Anti-bribery Convention as an exogenous shock that limits acquirers’ ability to pay bribes in foreign markets, I find that deal frequency decreases significantly from affected countries after the law enactment. More corrupt target countries experience a greater decline in cross-border deals. However, the effect of the anti-bribery legislation is mainly concentrated on public acquirers. Postlegislation acquirers are on average smaller and more competitive. Finally, I argue that anti-bribery laws are costly – this is evident from deal value destruction that can be as high as 28% of the total transaction synergy.

Dark Sides of Anti-Corruption Law: A Typology and Recent Developments in German Anti-Bribery Legislation

This Article takes a preliminary look at some distinct, unintended effects of anti-bribery law. In an exemplary and exploratory way, it intends to examine structural socio-legal problems and dilemmas of designing and implementing legislation against corruption. Firstly, it outlines four ideal types of legal norms that are meant to combat corruption but display significant negative features. Secondly, the typology is briefly applied to selected recent developments in German federal anti-bribery legislation. The Article concludes,inter alia, that the design, implementation, and interpretation of anti-corruption law is full of functional, legal, political, and moral pitfalls.

Universal Anti-Bribery Legislation Can Save International Business: A Comparison of the FCPA and the UKBA in an Attempt to Create Universal Legislation to Combat Bribery Around the Globe

A study of the the FCPA and the UKBA, comparing the differences and the potential pitfalls the discrepancy causes to global corporations. It discusses how universal anti-bribery legislation could change international business for the better.

Cross Border Mergers and Anti-Bribery Legislation

We hand-collect data on individual FCPA enforcement actions initiated by the U.S. Department of Justice and use them in a panel difference-in-difference estimator to provide the first systematic empirical evidence that anti-bribery enforcement is followed by a reduction in U.S. fixed capital investments in countries targeted by enforcement actions.

Revisiting Canada’s Commitment to the Fight Against Global Corruption and the Need for Nationality Jurisdiction Under the Corruption of Foreign Public Officials Act

Since 1999, Canada has been both a party to the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and had in place domestic legislation to criminalize bribing a foreign public official. Canadian officials have consistently stated that Canada is committed to fighting global corruption and its international obligation to take necessary measures to establish liability for the bribery of foreign public officials. However, unlike all other countries that have ratified the Convention, Canada has taken the position that its anti-bribery legislation and enforcement is limited to instances where a significant part of the offence is committed in whole or in part in Canada, rather than where its nationals commit corruption offences abroad. This article argues that there is sufficient evidence to undermine Canada’s rationale for limiting jurisdiction and sound policy reasons to revisit it. Since 2005, Canada has been the only G7 country in the little or no enforcement category and the only party to the Convention that does not provide for nationality jurisdiction. Additionally, several recent reports from international monitoring groups and comments from Canadian enforcement officials seriously question the effectiveness of Canada’s approach to jurisdiction and its ability to handle the number of investigations currently under way. It is time that Parliament re-introduce legislation to expand jurisdiction under the CFPOA. Part I outlines the putative jurisdiction of the CFPOA. Part II applies that test to the facts surrounding the highest-profile CFPOA prosecution in Niko Industries Ltd and questions whether Canada actually had territorial jurisdiction. Part III moves beyond the question of territorial jurisdiction to examine Canada’s international obligations under the Convention and the need for extra-territorial jurisdiction to cover corruption offences committed by Canadians abroad. The final part of this article discusses how giving the CFPOA territorial and nationality jurisdiction is in line with all the member states actively fighting global corruption, and examines how the United States and United Kingdom have been effective in exercising nationality jurisdiction.

The Impact of American Anti-Bribery Legislation, the Foreign Corrupt Practices Act of 1977, on FDI Inflows in India’s Infrastructure Sector

The Indian experience shows that after the economy was relatively freed from regulations and made open, the states which have delivered better governance and public services have managed to attract and retain greater shares of private investment. As a corollary, states which failed to provide good governance have witnessed a flight of both capital and people. This highlights the fact that governments can no longer attempt to encourage private investments in infrastructure without addressing real concerns about effectively combating corruption and improving the governance structure.

Trends in the International Fight Against Bribery and Corruption

Over the past decade, we have witnessed some early signs of progress in the battle against international bribery and corruption, a problem that throughout the history of commerce had previously been ignored. We present a model that we then use to assess progress in reducing bribery. The model components include both hard law and soft law legislation components and enforcement and compliance components. We begin by summarizing the literature that convincingly argues that bribery is an immoral and unethical practice and that the economic harm it causes falls most heavily on those least able to absorb it. The next section summarizes the main provisions of anti-bribery legislation including the Foreign Corrupt Practices Act (FCPA), the Organization for Economic Development’s Convention on Combating Bribery of Foreign Officials in International Business Transactions, the United Nations Convention Against Corruption and the laws of selected countries. We conclude this section with a discussion of the “moral imperialism” argument for not imposing Western laws and values on other cultures. The next section focuses on the roles played by NGOs including Transparency International (TI), the World Economic Forum (WEF), and the International Chamber of Commerce. We review trends in enforcement and prosecution, including a review of the United States’ enforcement processes, mechanisms for cross-border legal assistance, a discussion of the distinctive nature of FCPA cases, and an assessment of what the future holds for enforcement. The final section focuses on compliance processes for corporations aimed at reducing the risk of FCPA and related violations. This section also addresses the ethics of gift giving and “grease” payments. The article concludes with a summary and suggestions for further research. Throughout the article, we reference important bribery cases and include comments from several authorities who are on the front lines of the battle against international bribery.

Unwitting Sanctions: Understanding Anti-Bribery Legislation as Economic Sanctions against Emerging Markets

Although the purpose of international anti-bribery legislation, particularly the U.S. Foreign Corrupt Practices Act, is to deter bribery, empirical evidence demonstrates a more problematic effect: in countries where bribery is perceived to be relatively common, the present enforcement regime goes beyond deterring bribery and actually deters investment. Drawing on literature from political science and economics, this article argues that anti-bribery legislation, as presently enforced, functions as de facto economic sanctions. A detailed analysis of the history of FCPA enforcement shows that these sanctions have most often occurred in emerging markets, where historic opportunities for economic and social development otherwise exist and where public policy should encourage investment. This effect is contrary to the purpose of the FCPA which, as the legislative history shows, is to build economic and political alliances by promoting ethical overseas investment. These perverse and unanticipated consequences create two policy problems. First, the sanctions literature suggests that the resulting foreign direct investment void may be filled by capital-rich countries that are not committed to effectively enforcing anti-bribery measures. This dynamic can be observed, for example, in China's aggressive investment in Africa, Latin America, and Central Asia, and creates myriad ethical, economic, and foreign policy problems. Second, by enforcing these laws without regard to their sanctioning effects, developed nations are unwittingly sacrificing poverty reduction opportunities to combat bribery. The paper concludes with various proposed reforms to the text and enforcement of international anti-bribery legislation that would further the goal of deterring bribery without deterring investment.

Self-Interest and Altruism in the Deterrence of Transnational Bribery

This article explains why states in which bribe payers are located (payor states) criminalize transnational bribery. It suggests that these initiatives can enable selfinterested payor states to improve the terms upon which their nationals obtain the services of foreign public officials. Although the legislation in question is not patently designed to further economic interests, it may be only partially enforced in a manner consistent with the economic interests of payor states. This implies that further attention should be devoted to analyzing how anti-bribery legislation is enforced. Copyright 2002, Oxford University Press.

Self-Interest and Altruism in the Deterrence of Transnational Bribery

This article is concerned with explaining why states in which bribe-payers are located (?payor states?) criminalize transnational bribery. Some analysts have claimed that these initiatives are either examples of altruistic behaviour on the part of payor states or reflect economic interdependence between payor states and the states over which officials who receive bribes have jurisdiction (?payee states?). This article offers an alternative explanation namely, that those initiatives are methods by which payor states self-interestedly attempt to improve the terms upon which their nationals obtain the services of foreign public officials. After describing in a general way the forms of transnational bribery that payor states have an interest in deterring, the article examines several recent anti-bribery initiatives for evidence that they have been motivated by self-interest as opposed to altruism. Although the legislation in question is not patently designed to further economic interests it is more likely to be enforced in cases in which firms would find it advantageous in economic terms to be deterred from paying bribes than in other cases. Consequently, the existence of anti-bribery legislation in payor states is consistent with the hypothesis that payor states deter transnational bribery for self-interested reasons.

FCPA: The American Antibribery Legislation

The Foreign Corrupt Practices Act (FCPA) has been controversial since its inception in December 1977. Despite the various attempts to repeal or modify the Act, this piece of legislation remained as originally enacted until the 1988 Trade and Competitive Act revision. Although the debates on parts of the original Act seem to have reached an impasse, nonetheless the US Government finds itself in a catch‐22 situation – pioneering international ethical business standards and seemingly losing the competitive edge in foreign trade.