The Contract as Anti-Corruption Platform for the Global Corporate Sector
36 Pages Posted: 5 Feb 2020
Date Written: November 22, 2019
Corrupt expenditures by distributors, consultants, and other third-party agents constitute one of the largest liability risks to global firms under the Foreign Corrupt Practices Act and other applicable anti-corruption laws. As globalization fuels corporate transactions and the vast scope of certain anti-corruption laws, companies have begun inserting anti-corruption provisions, varying widely in substance, into their contracts with business partners seeking protection from potential corrupt conduct by these business partners and attempting to shift risk of criminal penalties, administrative fines and damage claims to the corrupt actors. This Article considers from an international law perspective the substance, usage and overarching goals of these anti-corruption provisions in contracts between private parties, and in particular, corporate actors with an international presence. It analyzes how the provisions function as corporate due diligence tools, fusing contract and anti-corruption law in the context of third-party intermediary risk. It concludes by offering recommended drafting and enforcement models as a risk-reduction strategy to harmonize with corporate compliance programs, and it suggests legislative reforms to harness more effectively the benefits of provision usage from a public policy perspective.
Keywords: corruption, compliance, contracts
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