The Prospective Role of Anti-Corruption Conventions in Curbing Transnational Bribery by Corporations

102 Pages Posted: 23 Jun 2008

See all articles by Thomas Simeon Obidairo

Thomas Simeon Obidairo

School of Oriental and Africa Studies, University of London

Date Written: 2005

Abstract

This paper argues that the current framework of multilateral efforts to curb transnational bribery by corporations is unable to tackle the problem of transnational bribery by corporations effectively.

Corruption, transnational bribery being one example, is a multifaceted and complex phenomenon often deeply rooted in the social, political, and economic systems of most African countries. Legislative strategies to combat transnational bribery have both a supply and demand side. There are therefore supply side solutions and demand side solutions to curbing transnational bribery by corporations. The supply side solutions seek to impede prospective bribe givers from offering or paying bribers. The demand side solution discourages prospective bribe takers from accepting or requesting bribes.

Initial efforts at curbing bribery focused on the demand side, with most countries enacting legislation prohibiting the receipt of bribes. In recent years, there have been efforts to ratchet up supply side solutions to transnational bribery largely through the efforts of the Organisation for Economic Cooperation and Development (OECD) member countries and more recently with the passage of the UN Convention on Corruption. The focus of these supply side strategies has been to curb transnational bribery by the imposition of criminal prohibitions on corporations engaging in transnational bribery. These supply side strategies have been criticised mainly with regard to the disparities in the ability of States to respond to the problem of transnational bribery.

Unfortunately, these responses are widely acknowledged as being inadequate in curbing transnational bribery by corporations. A simple comparison of the levels of compliance with the various multilateral conventions indicates that where the targets set by the agreements were low, the level of compliance was high. This is unfortunate because although these weak conventions have garnered a high level of compliance, they have provided little or no effective reduction in the levels of transnational bribery. In many respects, the analysis of the patterns of enforcement of these transnational bribery prohibitions suggest that compliance with these conventions are the result of political expediency rather a sustained commitment on the part of States to deter their corporations in engaging in transnational bribery.

The paper develops an alternative explanation for the ineffectiveness of transnational bribery prohibition arguing that the current liability regime regulating corporations has ossified outdated perceptions of the corporation. This liability regime treats corporation as a fiction for deriving liability, underestimating the complexity of the modern. Similarly, the liability regime treats the corporation as an entity for the purposes of imposing liability, exaggerating the unity of the corporation. These formalistic perceptions simultaneously bolster the capacity of the corporation to evade liability and constrain the imposition of criminal liability on the individuals within the corporation responsible for transnational bribery.

The paper advocates a different focus involving an augmented analysis of the primary participants in transnational bribery transactions, corporations, and an alteration of the existing regulatory regime to alter the behaviour of these corporations.

Keywords: Transnational bribery, corruption, corporate criminal liability, United Nations Convention on Corruption

Suggested Citation

Obidairo, Thomas Simeon, The Prospective Role of Anti-Corruption Conventions in Curbing Transnational Bribery by Corporations (2005). Available at SSRN: https://ssrn.com/abstract=1148167 or http://dx.doi.org/10.2139/ssrn.1148167

Thomas Simeon Obidairo (Contact Author)

School of Oriental and Africa Studies, University of London ( email )

Thornhaugh Street
Russell Square: College Buildings 541
London, WC1H 0XG
United Kingdom

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