Promoting Predictability in Business: Evaluating Solutions to Overlapping Liability in International Anti-Corruption Enforcement
31 Pages Posted: 31 Jan 2019
Date Written: December 1, 2018
As business increasingly cuts across national borders—and countries implement and enforce anti-corruption regimes more aggressively—companies risk liability in multiple jurisdictions. While fighting corruption is a valuable goal, the risk of overlapping liability undermines the international business environment and over-deters beneficial behavior, such as investment in the developing world. Scholars have articulated an interest in creating a formal mechanism to solve this problem, but they have yet to adequately describe the basic provisions such a mechanism should contain. In response, this Note attempts to define the elements of an effective solution. This Note proposes a (1) presumption that the country with the strongest jurisdictional ties to the allegedly unlawful activity will commence the anti-corruption action, (2) multi-jurisdictional prohibition against double jeopardy, and (3) commitment to seeking proportional punishment, including limiting disgorgement to the amount of ill-gotten gains. This Note argues that this mechanism should be housed in a series of bilateral agreements—similar to those seen in international antitrust enforcement.
Keywords: Anti-Corruption; International Business; International Development; Extra-territoriality; Disgorgement
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