Trends in the International Fight Against Bribery and Corruption

Abstract

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, the World Economic Forum and the International Chamber of Commerce. We review trends in enforcement and prosecution, including a review of 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 paper concludes with a summary and suggestions for further research. Throughout the paper we reference important bribery cases and include comments from several authorities who are on the front lines of the battle against international bribery.

Keywords: FCPA, Bribery, Corruption, International Bribery, Organization for Economic Development, Moral Imperialism, NGO, Transparency International, World Economic Forum, International Chamber of Commerce