Promoting Predictability in Business: Evaluating Solutions to Overlapping Liability in International Anti-Corruption Enforcement

31 Pages Posted: 31 Jan 2019 Last revised: 20 May 2019

See all articles by Andrew Bulovsky

Andrew Bulovsky

University of Michigan Law School

Date Written: December 1, 2018

Abstract

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

Suggested Citation

Bulovsky, Andrew, Promoting Predictability in Business: Evaluating Solutions to Overlapping Liability in International Anti-Corruption Enforcement (December 1, 2018). Michigan Journal of International Law, Vol. 40, 2019, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3319929

Andrew Bulovsky (Contact Author)

University of Michigan Law School ( email )

Ann Arbor, MI
United States

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