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INTERNATIONAL BRIBERY SCHOLARSHIP DATABASE (beta)
Prof. Andy Spalding
University of Richmond School of Law
Senior Editor of the FCPA Blog

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This database is maintained by Prof. Andy Spalding, with his Research Assistant, Tim Archer. It is designed to include academic articles that focus in substantial part on bribery in international business; it is not meant to include shorter, compliance-oriented writings. It is presently in beta form and incomplete. If you would like to recommend additions or edits to this database, please email aspaldin@richmond.edu, and cc timothy.archer@richmond.edu. Suggestions are most welcome.

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To search this database:
1) On a PC: hold CTRL + F. This will bring up a search box in which you can enter your search term or terms.
2) On a Mac: hold Command + F. This will bring up a search box in which you can enter your search term or terms.

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AUTHOR AUTHOR (URL)TITLETITLE (URL)CITATIONABSTRACT (abridged)DATE OF PUBLICATIONCURRENT INSTITUTIONAL AFFILIATION

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Babu, R. Rajeshhttp://web1.iimcal.ac.in/faculty/facpage.asp?ID=rajeshbabuThe United Nations Convention Against Corruption: A Critical Overviewhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=891898Indian Institute of Management, Calcutta The United Nations Convention Against Corruption 2003 is now the most important anti-corruption instrument with global scope of application. This paper attempts to provide a critical overview of the UN Convention against Corruption, with a comparative analysis of the other regional anti-corruption instruments. Corruption, apart from affecting the public at large, also causes reduced investment, lack of respect for the rule of law and human rights, undemocratic practices and diversion of funds intended for development and essential services, affects government's ability to provide basic services to its citizens. 2006Professor, Indian Institute of Management, Calcutta

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Bean, Brucehttp://www.law.msu.edu/faculty_staff/profile.php?prof=420Hyperbole, Hypocrisy, And Hubris In The Aid-Corruption Dialoguehttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1695074Georgetown Journal of International Law 41 Geo. J. Int'l L. 781 (2010)This article examines the relationship between corruption and foreign aid -- specifically, development aid intended to alleviate poverty by fostering economic growth. Despite the genorosity of aid provided, there is abundant evidence from the World Bank and others that development aid has not succeeded in producing sustainable economic growth. This article analyzes the link between corruption and the lack of deveopment aid success, as well as current instrumentalities available to combat grand corruption and their fundamental inadequacies.2010Michigan State University School of Law: Lecturer in Global Corporate Law

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Bixby, Michaelhttp://cobe.boisestate.edu/mbixby/The Lion Awakens: The Foreign Corrupt Practices Act - 1977 to 2010https://a.next.westlaw.com/Document/I013be8041f9b11e08b05fdf15589d8e8/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad70521000001389b128a7c8e33f9d0%3FNav%3DANALYTICAL%26fragmentIdentifier%3DI013be8041f9b11e08b05fdf15589#sk=2.C2K5kLSan Diego International Law Journal 12 San Diego Int'l L.J. 89 (2010)Since 1977, several events have contributed to change the way the DOJ and the SEC have enforce the FCPA which include: two significant amendments to the FCPA in the past twenty-one years, the influence of increasing globalization, several significant international agreements, and new anti-bribery laws in foreign countries. This article examines the history of the FCPA and its provisions, the historical enforcement of the FCPA and its influences on foreign anti-corruption laws, and recent trends in enforcement of the FCPA. In order to better portray the evolution of FCPA enforcement, a brief history of the origins of this law and its provisions will also be provided. The following sections explain the FCPA and detail the events that led to the enactment of the law in 1977, as well as the subsequent amendments to the law in 1988 and 1998.2010Boise State University College of Business and Economics: Professor of Management

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Boersma, Martinehttp://www.advocatenkantoorspera.co.uk/mr.-martine-boersma-juridisch-medewerkster.htmlCatching the 'Big Fish'? A Critical Analysis of the Current International and Regional Anti-Corruption Treatieshttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1301602Working Paper"Grand" corruption, i.e. corruption by public officials within the highest level of a State, is a phenomenon that can be found worldwide. But particularly in several developing countries the consequences of this type of corruption are devastating. Since the 1990s, an unprecedented number of international and regional anti-corruption treaties has been adopted. Particularly notable is the United Nations Convention Against Corruption, an extensive global instrument. The current working paper discusses the content of the newly developed legal instruments and the accompanying monitoring mechanisms - if available. It also elaborates upon their positive aspects and shortcomings. More importantly, the following question will be answered: is it likely that the international and regional treaties will have a significant impact upon the incidence of grand corruption? In other words, can the 'big fish' finally be caught? 2008Spera Corporate & Tax Litigators, The Netherlands: Partner

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Bonneau, Jacqueline L.http://www.advocatenkantoorspera.co.uk/mr.-martine-boersma-juridisch-medewerkster.htmlCombating Foreign Bribery: Legislative Reform in the United Kingdom and Prospects for Increased Global Enforcement (NOTE)https://a.next.westlaw.com/Document/Ia701d21b884511e08b05fdf15589d8e8/View/FullText.html?navigationPath=%2FRelatedInfo%2Fv4%2Fkeycite%2Fnav%2F%3Fguid%3DIa701d21b884511e08b05fdf15589d8e8%26orgGuid%3DI11761d219af511dba2eba69ce80078b6%26category%3DCitingRefeColumbia Journal of Transnational Law 49 Colum. J. Transnat'l L. 365 (2011)Foreign bribery represents a serious impediment to global prosperity and development. For decades, the United States remained one of the few industrialized nations to combat this threat, criminalizing the payment of bribes abroad under the Foreign Corrupt Practices Act. In recent years, however, as the United States has strengthened its enforcement efforts, other nations have begun drafting anti-bribery legislation based on the American model; the United Kingdom is perhaps the most significant example of this trend. After facing international criticism for its failure to prosecute bribery of foreign officials by British companies, the U.K. government passed a new Bribery Act that in many ways mirrors the provisions of the FCPA. It remains to be seen, however, if simply exporting and expanding on the American model will prove sufficient to sustain increased international enforcement of anti-bribery norms. This Note traces the development of British anti-bribery law over the past decade, analyzing and critiquing the recently adopted U.K. Bribery Act in comparison to the FCPA and discussing the prospects for continued global enforcement under both legislative regimes.2011Columbia Law School [Student Note]

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Brown, H. Lowellhttp://mainelaw.maine.edu/faculty/profiles/adjunct/brown.htmlExtraterritorial Jurisdiction Under The 1998 Amendments To The Foreign Corrupt Practices Act: Does The Government's Reach Now Exceed Its Grasp?https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=0283596636&pubNum=1198&originationContext=document&transitionType=DocumentItem&contextData=%28sc.DocLink%29North Carolina Journal of International Law and Commercial Regulation 26 N.C. J. Int'l L. & Com. Reg. 239 (2001)The 1998 amendments to the FCPA expanded the Act's substantive scope of the FCPA and extended the jurisdictional reach of the government's enforcement powers. This article analyzes the 1998 amendments. Part I of the article provides a historical overview of the FCPA. Part II of the article discusses the OECD Convention. Part III analyzes the United States' 1998 Amendments to the Foreign Corrupt Practices Act. Part IV of the article analyzes the applicability of the FCPA extraterritorially. Part V concludes that while the amendments' importance in conjunction with the OECD Convention largely remains to be seen, it is clear that the enlargement of the extraterritorial effect of the Act's antibribery provisions may prove to be the most significant and challenging foray by the United States into the regulation of international business, certainly since the FCPA was originally enacted.2001University of Maine School of Law: Professor of Law

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Carr, Indira M. & Outhwaite, Opihttp://www.surrey.ac.uk/law/people/indira_carr/Corruption, Corporate Social Responsibility and Corporate Governancehttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1639610Working PaperCorruption is an issue that affects developing and developed countries alike. Businesses are often seen as fueling the flames of corruption by engaging in corrupt practices in order to gain advantages over competitors in business deals. Since the mid-1990s the international community has been focusing on ways to increase business integrity by adopting conventions for ratification and effective implementation by Contracting States and soft law instruments for voluntary incorporation by businesses within their Corporate Social Responsibility (CSR) policies. The question however is whether these self-regulatory measures have made any noticeable impact on companies' practices and policies in respect of corruption. This paper addresses this question through a survey of companies' policies and practices as expressed in their CSR statements and responses to questionnaires of publicly listed companies as published by The Times (London) in the Industrials, Telecoms and Technology sectors. 2010University of Surrey, UK: Professor of Law & University of Greenwich, UK: Lecturer in Law

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Carr, Indira M.http://www.surrey.ac.uk/law/people/indira_carr/Strategic Improvemens in the Fight Against Corruption in International Business Transactionshttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1401342Journal of Business Law 4 J. Bus. L. 170 (2011)Studies from international organisations such as the World Bank and the International Monetary Fund highlight the harmful effects of corruption on the poor, the economic health of a nation and the competitive environment for conducting international business. The international response to corruption has largely been the adoption of various regional and international conventions. This paper critically comments on the current schemes adopted towards combating corruption in the international business environment and proposes improvements that could effectively reduce the incidence of corruption. While the emphasis of this paper is legal, it also draws upon corruption in other disciplines such as economics, politics and development studies with a view to gaining a better understanding of the causes of corruption and its eradication.2006University of Surrey, UK :Professor of Law

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Carr, Indira M.http://www.surrey.ac.uk/law/people/indira_carr/The OECD Anti-Bribery Convention Ten Years Onhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1401326Manchester Journal of Economic Law 5 Manchester J. Econ. L. 3 (2008)The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions was adopted in 1997. During the last ten years the OECD has been extremely busy monitoring the implementation of this Convention in contracting states. During this process a number of issues have emerged. This article examines some of these: (1) the role and impact of the functional equivalence approach, (2) the effect of gaps and flexibility surrounding international business transactions and corporate liability, and (3) Article 5 and the defence of necessity available to a State under customary international law in the context of the UK decision to end the BAE investigations. 2008University of Surrey, UK: Professor of Law

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Carr, Indira M.http://www.surrey.ac.uk/law/people/indira_carr/The United Nations Convention on Corruption: Making a Real Difference to the Quality of Life of Millions?http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1394227Manchester Journal of Economic Law 3 Manchester J. Econ. L. 3 (2006)It is now a year since the UN Convention on Corruption, 2003 came into force. The Convention has received well over sixty ratifications or accessions. Most of these are from countries in the developing world. This article consisting of three parts addresses the following. Are there any special features in the UN Convention that make it unique in advancing the fight against corruption that also contribute to its popularity? Will this convention make a difference in achieving a less corrupt world? Part I uses a table to provide both a bird's eye view of the other anti-corruption conventions and a reference point for comparison when examining the UN Convention. Part II addresses the issue of the popularity of the UN Convention by exploring critically its scope and innovative provisions against the historical setting of corruption specific regional and international conventions in Part I. Part II is divided into the following sections: offences, investigation and other procedural aspects, asset recovery, sanctions and implementation and concludes with a section entitled "Popularity Assessed" which deals with the main reasons for its wide adoption. Part III places the UN Convention in the broader context of the limits of criminal law and engages critically with the use of preventive measures as envisaged by the UN Convention.2006University of Surrey, UK: Professor of Law

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Celentani, Marco et alhttp://www.eco.uc3m.es/english/staff/contact_info/celentan.htmlCombating Corruptions in International Business Transactionshttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=428163UPF Economics and Business Working Paper No. 670We analyze the impact of different types of international conventions that require signatory countries to penalize domestic firms that are found to have bribed foreign public officials. We analyze enforcement of penalties under a convention styled after the OECD's 'Convention on Combating Bribery of Foreign Public Officials in International Business Transactions', in which signatory countries commit to prosecuting firms that have bribed public officials of any foreign country. We compare the results with the case in which the convention requires signatory countries to commit to prosecuting firms that have bribed public officials of signatory countries only. We argue that the second type of convention is more likely to ensure enforcement of penalties on firms found to have bribed foreign public officials. 2003Universidad Carlos III de Madrid: Professor of Economics

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Chaffee, Erichttp://www.udayton.edu/directory/law/chaffee_eric.phpThe Foreign Corrupt Practices Act: An Incomplete Vision for Combating Corruption in International Business Transactions (forthcoming)Ohio St. L.J. (forthcoming 2012)2012University of Dayton: Professor of Law

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Cheung, Stephen Yan-Leung et alhttp://www.hkbu.edu.hk/~scheung/cv.htmHow Much do Firms Pay as Bribes and What Benefits do They Get? Evidence from Corruption Cases Worldwidehttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=177224624th Australasian Finance and Banking Conference 2011; NBER Working Paper No. 17981
Issued in April 2012
This Article analyzes a hand-collected sample of 166 prominent bribery
cases, involving 107 publicly listed firms from 20 stock markets that
have been reported to have bribed government officials in 52 countries
worldwide during 1971-2007. It focuses on the initial date of award of the
contract for which the bribe was paid (rather than of the revelation of
the bribery). This data enables the authors to describe in detail the mechanisms through which bribes affect firm value. The article finds that firm performance, the rank of the
politicians bribed, as well as bribe-paying and bribe-taking country
characteristics affect the magnitude of the bribes and the benefits that
firms derive from them.
2012Hong Kong Baptist University, School of Business: Dean and Professor of Finance

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Choi, Stephen J. & Davis, Kevin E. https://its.law.nyu.edu/facultyprofiles/profile.cfm?personID=23843Foreign Affairs and Enforcement of the Foreign Corrupt Practices Acthttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2116487NYU School of Law, Public Law Research Paper No. 12-35
We examine the factors that explain the distribution across companies and countries of sanctions imposed in Foreign Corrupt Practices Act (FCPA) enforcement actions. We use a dataset of FCPA actions resolved from 2004 to 2011. We find evidence that the sanctions in an individual FCPA action are positively correlated with the size of bribe, the profit related to the bribe, and the amount of business affected by the bribe. The sanction increases if a subsidiary faces FCPA charges, if the FCPA violation occurs in multiple countries, if the ultimate parent company of entities involved in the FCPA violation is foreign, and if foreign regulators are involved in the action. We also conduct a number of country-level tests to assess factors that explain the ultimate distribution of FCPA sanctions across countries. Looking to the distribution of aggregate total monetary sanctions by country where FCPA violations take place, we find that aggregate sanctions are proportional to our measure of overall bribe activity in a violation country. We report evidence that the SEC and DOJ impose disproportionately greater aggregate sanctions for violations in countries with a lower GNI per capita as well as weaker local anti-bribery institutions. The SEC and DOJ also impose disproportionately greater aggregate sanctions for violations where the home country of the ultimate parent company of FCPA defendants has a bilateral cooperation agreement with the SEC, a Mutual Legal Assistance Treaty with the United States, and stronger local anti-bribery institutions. 2012New York University School of Law: Professor of Law & New York University School of Law: Professor of Business Law

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Corr, Christopher F. & Lawler, Juddhttp://www.whitecase.com/ccorr/Damned if you Do, Damned if you Don't? The OECD Convention and the Globalization ofAnti-Bribery Measureshttps://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=0113417302&pubNum=1276&originationContext=document&transitionType=DocumentItem&contextData=%28sc.DocLink%29Vanderbilt Journal of Transnational Law 32 Vand. J. Transnat'l L. 1249 (1999)This article explores the efforts of the international community to battle corruption by focusing on the recently promulgated Organization of Economic and Cooperative Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. The authors begin by examining the U.S. Foreign Corrupt Practices Act (FCPA), the precursor to the OECD Convention, and by describing all cases initiated by the government pursuant to the FCPA. The authors then discuss multinational anti-bribery efforts that ultimately led to the adoption of the Convention. The article focuses on the provisions of the Convention as well as the implementing legislation of various signatories. Finally, the authors explains compliance measures that multinational U.S. corporations have adopted to protect themselves from FCPA violations and outlines measures that such corporations can take to ensure compliance with implementing legislation under the OECD Convention.1999White & Case: Partner & White & Case: Associate

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Cortney, C. ThomasThe Foreign Corrupt Practices Act: A Decade of Rapid Expansion Explained, Defended, and Justified (NOTE)https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=0352104588&pubNum=100385&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Keycite%29#co_pp_sp_100385_446Review of Litigation 29 Rev. Litig. 439 (2010)In the face of a growing amount of scholarly criticism, this paper attempts to defend the FCPA's expansion, particularly the use of diversion agreements. Part II focuses on the historical and technical development of the Act. Part III then examines the rise and use of diversion agreements in FCPA enforcement actions in the last decade. Part IV concludes with a response to the many concerns leveled against the Act's recent expansion, ultimately determining that the current system of enforcement sufficiently satisfies the goals of the FCPA (to deter foreign bribery and to create a level playing field) with very little collateral consequences (harms and abuses suffered due to exorbitant prosecutorial power and discretion).2010University of Texas: [Student Note]

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Crites, D. Michaelhttp://www.dinsmore.com/aboutus/uniEntity.aspx?xpST=UniversalProfessional&professional=493&op=&ajax=noWhy The Foreign Corrupt Practices Act is Hurting Our Businesses and Needs to be Reformedhttp://www.dinsmore.com/foreign_corrupt_practices_act/The State JournalThe FCPA's purpose and goals remain as true and necessary today as they were over 30 years ago when they were first enacted into law. Federal law needs to prevent and prohibit unethical bribes to foreign officials. What has changed in the past 30 years, however, is the federal government's enforcement of the law. 2011Dinsmore: Partner

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Cuervo-Cazurra, Alvarohttp://www.cuervo-cazurra.com/The Effectiveness of Laws against Bribery Abroadhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1059001Journal of International Business Studies, 39 J. Int'l Bus. Studies 634 (2008)I analyze the effectiveness of laws against bribery abroad in inducing foreign investors to reduce their investment in corrupt countries. The laws are designed to reduce the supply of bribes by foreign investors by increasing the costs of bribing abroad. Such increase in costs will make foreign investors more sensitive to corruption and induce them to reduce their investments in corrupt countries. However, I argue that these laws need to be implemented and coordinated in multiple countries to become effective. Otherwise, investors in a country will have incentives to bypass them when competitors from other countries are not bound by similar legal constrains. The empirical analysis shows that investors from countries that implemented the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transaction of 1997 reduced their investments in corrupt countries. Investors from the US, which were bound by the Foreign Corrupt Practices Act of 1977, also reduced investments in corrupt countries, but only after the OECD Anti-Bribery Convention was in place. 2008Northeastern University: Professor of International Business and Strategy

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Cuervo-Cazurra, Alvarohttp://www.cuervo-cazurra.com/Who Cares about Corruption?http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1060221Journal of International Business Studies, 37 J. Int'l Bus. Studies 803 (2006)This paper examines the impact of corruption on foreign direct investment (FDI). It argues that corruption results not only in a reduction in FDI, but also in a change in the composition of country of origin of FDI. It presents two key findings. First, corruption results in relatively lower FDI from countries that have signed the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. This suggests that laws against bribery abroad may act as a deterrent against engaging in corruption in foreign countries. Second, corruption results in relatively higher FDI from countries with high levels of corruption. This suggests that investors that have been exposed to bribery at home may not be deterred by corruption abroad and instead seek countries where corruption is prevalent. 2006Northeastern University: Professor of International Business and Strategy

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D'souza, Anne E.http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1440366The OECD Anti-Bribery Convention: Changing the currents of tradehttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1581429Journal of Development Economics, 97 J. Dev. Econ. 73 (2012)This paper examines the effects of a watershed anti-corruption initiative – the 1997 OECD Anti-Bribery Convention – on international trade flows. I exploit variation in the timing of implementation by exporters and in the level of corruption of importers to quantify the Convention's effects on bilateral exports. Using a large panel of country pairs to control for confounding global and national trends and shocks, I find that, on average, the Convention caused a reduction in exports from signatory countries to high corruption importers relative to low corruption importers. This suggests that by creating large penalties for foreign bribery, the Convention indirectly increased transaction costs between signatory countries and high corruption importers. I also find evidence that the Convention's effects differed across product categories. 2012U.S. Department of Agriculture (USDA) - Economic Research Service (ERS): Research Economist

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Dalton, Marie M.Efficiency v. Morality: The Codification of Cultural Norms in the Foreign Corrupt Practices Act (NOTE)http://papers.ssrn.com/sol3/papers.cfm?abstract_id=915398New York University Journal of Law and Business 2 N.Y.U. J. L. Bus. 583 (2006)Transnational corruption, specifically the bribery of foreign government officials by foreign commercial entities, results in considerable economic harm for developing and developed nations alike. Bribery distorts market competition, instills inefficiency into economic transactions, impedes the development of international commercial relationships, and undermines public confidence in democratic governance. However, when not derived from economic principles but from moral disapprobation, regulation proscribing bribery of foreign officials may have unintended economic consequences. The morally based prohibitions incorporated in the FCPA are extraterritorially applicable to the citizens and entities of foreign nations. As cultural pluralism predominates despite a rapidly globalizing world, the values and norms incorporated in the Act may conflict with divergent cultural standards or conceptions of permissible conduct abroad. The application of the Act in foreign jurisdictions may intrude upon the prescriptive jurisdiction of foreign nations to develop regulation aligned with their local values and economic policy objectives. 2006New York University [Student Note]

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Darrough, Masako N.http://zicklin.baruch.cuny.edu/faculty/programs/doctoral/about-us/profiles/darrough.htmlThe FCPA and the OECD Convention: Some Lessons from the U.S. Experiencehttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=555643Journal of Business Ethics, 93 J. Bus. Ethics 255 (2004)Although corruption is ubiquitous, attitudes toward it differ among countries. The U.S. had been the only country, until 1997 OECD Convention, with an explicit extraterritorial anti-bribery law. The Foreign Corrupt Practices Act of 1977 employs a two-pronged approach to control the supply side of corruption: (1) anti-bribery provisions and (2) accounting (internal control) provisions. I offer indirect evidence that shows that the FCPA had limited success. The OECD Convention adopts the same two-pronged approach, but is likely to be more successful since it is a multilateral treaty: the signatory nations can effectively form a cartel to reduce the cost of doing business. As with any cartel, however, each multinational corporation has an incentive to deviate. I argue that the main lesson to be drawn from the U.S. experience is that we need, in addition to internal controls, stronger and more effective corporate governance within an appropriate regulatory framework. 2004City University of New York, Zicklin School of Business: Professor of Accountancy

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Davis, Kevin E.https://its.law.nyu.edu/facultyprofiles/profile.cfm?personID=22193Why Does the United States Regulate Foreign Bribery: Moralism, Self-Interest, or Altruism?https://a.next.westlaw.com/Document/I6c07479f936d11e18b05fdf15589d8e8/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad70525000001381ffb5c468954dd0a%3FNav%3DANALYTICAL%26fragmentIdentifier%3DI6c07479f936d11e18b05fdf15589New York University Annual Survey of American Law 67 N.Y.U. Ann. Surv. Am. L. 497 (2012)The legislative history of the FCPA suggests that moralism and self-interest played the most significant roles in shaping the original Act and its 1988 Amendments. Since then, altruism has played a more prominent role in shaping the FCPA and other initiatives aimed at foreign bribery. There is arguably some tension between self-interest and altruism as guides to enforcing the FCPA. In Part I, this essay traces the motivations for enacting the FCPA as expressed in the legislative history and examines how those motivations evolved over time as the FCPA was amended. Part II discusses the potential tension between self-interest and altruism and several ways in which that tension might be resolved.2012New York University School of Law: Professor of Business Law

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Delaney, Patrick X.http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan024516.pdfTransnational Corruption: Regulation Across Bordershttp://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan024516.pdfVirginia Journal of International Law 47 Va. J. Int'l L. 413 (2007)This article proceeds through five stages: Part I isolates corruption as a regulatory issue. Part II surveys the existing international legal instruments addressing corruption. Part III engages with Slaughter's concept of transgovernmental networks, considering in particular the problems of legitimacy arising from such networks. In contrast to the more limited and statist transgovernmental networks advocated by Slaughter, Part IV considers the broader concept of regulatory webs as presented by Braithwaite and Drahos. It suggests that regulation of this form can harness the power of soft law, and do so in a manner which is more consistent with generally accepted standards of legitimacy. Part V seeks to provide a blueprint for policy formulation, albeit in a modest form. It encourages regulators to look to non-state regulatory methods in conjunction with traditional state-centric models, particularly when confronted with intractable global problems. In addition, it canvasses some potential forms of anti-corruption regulation and assesses existing endeavors in the area.2007International Court of Justice in The Hague: Associate

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Engle, Erichttp://hu-berlin.academia.edu/EricEngleI Get by with a Little Help from My Friends? Understanding the UK Anti-Bribery Statute, by Reference to the OECD Convention, and the Foreign Corrupt Practices Acthttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1702470The International Lawyer 44 Int'l Law. 1173 (2011)The UK Anti-Bribery Act makes both bribery of a public official and private-to-private commercial bribery illegal; it imposes a (strict liability) offense for commercial organizations which fail to prevent bribery by persons associated with them. The Act has extraterritorial effect and applies to transactions of British subjects or on British territory. Commercial organizations may raise the statutory defense of adequate procedures in place to prevent bribery which, if proven, exonerates the commercial organization from the strict liabity for bribery by their associated persons. Unlike the FCPA, the UK Act does Not exempt facilitation payments (grease) from coverage. The Act meets and exceeds Britain's obligations under the OECD Anti-Bribery Convention, itself too an outgrowth of the U.S. FCPA and seeks to raise international standards and relies on soft law to do so in tandem with hard law.2010Humboldt University of Berlin: Professor of Law

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Frecka, Thomas J., et al.http://business.nd.edu/thomasfrecka/Trends in the International Fight Against Bribery and Corruptionhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1527470Working PaperOver 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 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 FCPA, the OECD, and 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. 2009Notre Dame: Professor of Accountancy

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Gantz, David A.http://www.law.arizona.edu/faculty/getprofile.cfm?facultyid=41Globalizing Sanctions Against Foreign Bribery: The Emergence of a New International Legal Consensushttps://a.next.westlaw.com/Document/I586211b15ac911dbbe1cf2d29fe2afe6/View/FullText.html?navigationPath=%2FRelatedInfo%2Fv4%2Fkeycite%2Fnav%2F%3Fguid%3DI586211b15ac911dbbe1cf2d29fe2afe6%26ss%3D0106531861&listSource=RelatedInfo&list=CitingReferences&rank=0Northwestern Journal of International Law and Business 18 Nw. J. Int'l L. & Bus. 457 (1998)This article focuses on the Inter-American Convention Against Corruption and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. Part I of the article begins with a review of the rationale and key legal elements of the U.S. Foreign Corrupt Practices Act. Part II describes recent efforts by the United States to convince other governments and firms of the need for binding, enforceable and universally accepted rules against corrupt payments to foreign public officials. Parts III and IV survey the activities of various governmental organizations and major private sector groups that support international efforts to effectively discourage foreign bribery, respectively. The key sections, Parts V and VI, describe, analyze and critique the two major international conventions, the Inter-American Convention Against Corruption, and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. Finally, Part VII discusses the further steps that must be taken to be sure that this recent progress becomes a significant and effective deterrence to foreign bribery.1998University of Arizona College of Law: Professor of Law

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George, Barbara Crutchfield, et al.http://blj.ucdavis.edu/authors/Barbara-George.htmlThe 1998 OECD Convention: An Impetus for Worldwide Changes in Attitudes Toward Corruption in Business Transactionshttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=235453American Business Law Journal 37 Am. Bus. L.J. 485 (2000)The Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, as formulated by the Organization for Economic Cooperation and Development (OECD), provides an impetus for worldwide changes in legislation governing international business transactions. The Convention obligates signatory countries to adopt domestic legislation making bribery of foreign public officials a criminal act. Additionally, the Convention emulates the corporate accountability approach of the U.S. Foreign Corrupt Practices Act to detect corrupt payments. The Convention alone is not enough, however, to address other corrosive aspects of corruption. This article examines the strengths of the Convention, analyzes its shortcomings, and recommends that the OECD pursue a multi-faceted strategy to tackle corruption. The strategy should include alliances with other multilateral organizations, international financial institutions, and civil society to develop additional initiatives for educating relevant parties and changing their attitudes about corruption, so that it will be significantly diminished. 2000California State University, Long Beach - College of Business Administration: Professor of Business Administration

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Hatchard, Johnhttp://www7.open.ac.uk/oubs/research/staff-detail.asp?id=320Recent Developments In Combating The Bribery Of Foreign Public Officials: A Cause For Optimism?https://a.next.westlaw.com/Document/Ia2f3b1126ab411ddba13ead008c6b935/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad604020000013761f8ba6eb7d97c34%3FNav%3DANALYTICAL%26fragmentIdentifier%3DIa2f3b1126ab411ddba13ead008c6University of Detroit Mercy Law Review, 85 U. Det. Mercy L. Rev. 1 (2007)This article postulates that it is not enough to focus attention on the developing world, but rather to recognize that, particularly regarding grand corruption, the problem often has a transnational dimension. Thus it is necessary to go further and examine the issue as to who is responsible for the corruption and what is being done to deal with them. The article focuses on recent efforts to combat bribery of officials, noting that "corruption world-wide weakens democracy, harms economies, impedes sustainable development and can undermine respect for human rights by supporting corrupt governments, with widespread destabilizing consequences."2007Open University: Visiting Professor

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Hellman, Joel S. et al.www.colbud.hu/honesty-trust/hellman/cv.PDFFar from Home: Do Foreign Investors Import Higher Standards of Governance in Transition Economies?http://papers.ssrn.com/sol3/papers.cfm?abstract_id=386900Working PaperBased on the Business Environment and Enterprise Performance Survey (BEEPS) of firms in transition countries, which unbundles corruption to measure different types of corrupt transactions and provide detailed information on the characteristics and performance of firms, we find that: i) corruption reduces FDI inflows and attracts lower quality investment in terms of governance standards; ii) in misgoverned settings, FDI firms may magnify the problems of state capture and procurement kickbacks, while paying a lower overall bribe burden than domestic firms; iii) FDI firms undertake those forms of corruption that suit their comparative advantages, generating substantial gains for them and challenging the premise that they are coerced, which makes it difficult to develop effective constraints on such behavior; and, iv) transnational legal restrictions to prevent bribery had not led to higher standards of corporate conduct among foreign investors by the year 2000. Rather than being construed as a case against foreign investment; we argue that state capture is created and maintained through restrictions on competition and entry in strategic sectors. Thus, enhancing competition by attracting a wider, more diverse set of FDI firms is critical to the broader strategic framework of fighting state capture and corruption. 2002The World Bank: Lead Specialist, Public Sector and Governance

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Henning, Peter J.http://law.wayne.edu/profile/peter.henning2/?utm_source=poster&utm_medium=link&utm_campaign=faculty-poster&utm_content=Public Corruption: a Comparative Analysis of International Corruption Conventions and United States Lawhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=298089Arizona Journal of International and Comparative Law, Forthcoming The Article compares United States law with three international conventions designed to strengthen significantly domestic laws against public corruption among the signatory nations. It undertakes a detailed analysis of the three conventions adopted by the European Union, the Organization for Economic Co-operation and Development (OECD), and the Organization of American States, and reviews how the conventions seek to define what constitutes corruption. The Article discusses how the three conventions use bribery as the paradigm form of corruption, without considering fully other forms of corruption involving misuse of authority resulting in personal enrichment. The Article then looks at United States law, noting that while federal law on the topic is not entirely consistent and contains no single provision on corruption, the United States has developed a strong anti-corruption law that provides the means to address different forms of corruption. Among the issues that American law deals with that are largely ignored by the international conventions are: (1) whether gratuities that do not meet the requirements of a bribe should also be punished as corrupt; (2) the role of campaign contributions in anti-corruption law; and, (3) how the federal mail fraud statute, which prohibits fraud depriving another of the right of honest services, should be adopted by countries seeking to expand their corruption law. The Article argues that American law can provide good examples for the international effort to define and punish corruption. 2012Wayne State University Law School: Professor of Law

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Hess, David & Dunfee, Thomas W.http://webuser.bus.umich.edu/dwhess/Fighting Corruption: A Principled Approachhttp://knowledge.emory.edu/papers/947.pdfCornell International Law Journal, 33 Cornell Int. L.J 593Firms establish prodecures to assure that their employees are not bribed by others whie simultaneously using bribes to obtain business. Firms from countries with minimal domestic corruption play a major role as bribe-payers in corrupt environments. Their participation in some forms of corruption may be explained by a variety of factors including competititve necessity, respect for local cultural norms, extortion, and inability or unwillingness to control rogue employees. At the same time, public opinion appears to be turning strongly against corrupt practices and demanding that something be done about bribery.2000University of Michigan, Ross School of Business: Professor of Business Law & University of Pennslyvania: Professor of Legal Studies and Business Ethics (deceased)

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Hess, David & Dunfee, Thomas W.http://webuser.bus.umich.edu/dwhess/Getting From Salbu to the "Tipping Point": The Role of Corporate Action Within a Portfolio of Anti-Corruption Strategies.https://a.next.westlaw.com/Document/I6f247c315ac911dbbe1cf2d29fe2afe6/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad7051c00000139552636f934442da5%3FNav%3DANALYTICAL%26fragmentIdentifier%3DI6f247c315ac911dbbe1cf2d29fe2Northwestern Journal of International Law & Business, 21 NW J. of Int. L & Bus. 471 (2001)Salbu's "big questions" identify core issues for scholars on bribery and corruption. Salbu asks: (1) when may it be ethical to pay a bribe, (2) whether the Foreign Corrupt Practices Act's ("FCPA") provisions on "routine government action" permit us to distinguish between appropriate and inappropriate facilitative payments, (3) whether non-governmental organizations ("NGOs") should supplant the role of governments in fighting corruption, and (4) whether corporate principles can have an impact in the fight against corruption. Our focus is primarily on the latter question, but encompasses all of them. Implicit in Salbu's list is the question of whether a single magic bullet can be identified as a likely solution to the problem of corruption, e.g. whether NGOs should "supplant" governmental action. Instead of phrasing the question in terms of either-or, we would ask: What is the appropriate mix of strategies to most effectively combat corruption? The choice is not choosing between strategies, but finding the right mix of strategies to capitalize on their synergies and most effectively combat corruption from all sides. We argue that a portfolio of strategies will be the most efficient route to conquering corruption. Over time, new strategies may emerge and the relative importance of strategies will shift within an anti-corruption portfolio.2001University of Michigan, Ross School of Business: Professor of Business Law & University of Pennslyvania: Professor of Legal Studies and Business Ethics (deceased)

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Hess, David & Dunfee, Thomas W.http://webuser.bus.umich.edu/dwhess/Taking Responsibility for Bribery: The Multinational Corporation's Role in Combating Corruptionhttp://www.greenleaf-publishing.com/productdetail.kmod?productid=2964Sullivan, R. (ed.) Business and Human Rights: Dilemmas and Solutions, pp. 260-271. Sheffield, UK: Greanleaf Publishing. Corruption is an under-appreciated impediment to the realisation of human rights in developing countries. While government officials profit from bribes taken from multinational corporations and others, many citizens' rights are compromised. Like any economic transaction, corruption has both a demand side and a supply side. Public officials demand bribes, and private citizens or organisations such as businesses, supply the bribes. Any system to control corruption by attacking only one side of the transaction will surely fail. An effective anti-corruption system requires a variety of measures attacking corruption from all sides.2003University of Michigan, Ross School of Business: Professor of Business Law & University of Pennslyvania: Professor of Legal Studies and Business Ethics (deceased)

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Hill, Jennifer G. http://sydney.edu.au/law/about/staff/JenniferHill/Prohibiting Bribery of Foreign Public Officials - Implications for Corporate Criminal Liabilityhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=924150Company and Securities Law Journal 16 Company & Sec. L.J. 384 (1998)In the late 1990s, it was announced that Australia would introduce legislation to respond to an OECD Convention for criminalizing bribery of foreign public officials. This was part of a coordinated international OECD initiative. The US had already addressed such issues two decades earlier under the Foreign Corrupt Practices Act of 1977. This paper discusses the rationales for prohibiting bribery of foreign public officials and the scope of the draft Australian provisions, which were designed to enforce the OECD Convention. The paper specifically focuses on the broader implications of the bribery offence for corporate criminal liability. It discusses when payment of a bribe by an employee or officer to a foreign public official may result in corporate criminal liability, and the mechanisms through which corporations might protect themselves from such liability. 1998University of Sydney (Australia): Professor of Corporate Law

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Hinchey, BrucePunishing the Penitent: Disproportionate Fines in Recent FCPA Enforcements and Suggested Improvements (NOTE)http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1650925Public Contract Law Journal, 40 Pub. Contract L.J. 393 (2010)The Department of Justice has long promised tangible benefits to companies that voluntarily disclose Foreign Corrupt Practices Act (FCPA) violations. Justice Department officials have promised that the enforcement of the FCPA is both fair and consistent. Despite these promises, critics question the benefits of voluntary disclosure based on the outcome of a few, isolated cases. In this thesis, forty FCPA cases from 2002 through 2009 are compiled, comparing the ratio between bribes and fines for companies that do and do not voluntarily disclose. The results side with the critics and reveal that there does not appear to be a benefit to voluntary disclosure. The data from these cases is then used to identify how the FCPA can be honed to encourage compliance and deter violations in a fairer and more efficient manner. Next, comparisons are made between the FCPA and other anti-corruption organizations and entities, with the intent of incorporating refinements to the voluntary disclosure enforcement process. These comparisons consider not only the legal framework for preventing bribery but also how those laws are enforced. Finally, recent FCPA developments are considered along with some suggested actions to bring more fairness and efficiency to voluntary disclosures under the FCPA. 2010George Washington University School of Law [Student Note]

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Hurst, Melissa Kelly Eliminating Bribery in International Business Transactionshttps://a.next.westlaw.com/Document/I867c5f315ae511dbbd2dfa5ce1d08a25/View/FullText.html?navigationPath=%2FRelatedInfo%2Fv4%2Fkeycite%2Fnav%2F%3Fguid%3DI867c5f315ae511dbbd2dfa5ce1d08a25%26ss%3D0106531861&listSource=RelatedInfo&list=CitingReferences&rank=0Journal of International Law and Practice 6 J. Int'l L. & Prac. 111 (1997)Bribery in international business disrupts the local economy, discourages foreign investment, destabilizes friendly foreign governments, and impairs the ability of American firms to compete with foreign firms that are permitted by law not only to pay bribes, but in many instances to deduct the cost of the bribe from their income taxes. Section Two of this paper describes the magnitude and scope of the problem of bribery in international business transactions. Section Three analyzes the application and enforcement of the Foreign Corrupt Practices Act, and provides a brief description of the scandals and investigations leading to its enactment. Section Four examines recent trends toward eliminating bribery and addressing the tax deductibility of bribes in international commercial transactions. Twenty years of U.S. pressure to persuade other countries to criminalize bribery of foreign public officials has resulted in the adoption of the OECD Convention. The OECD Convention represents significant progress toward eliminating bribery of foreign public officials. Regrettably, the OECD Convention fails to prevent foreign firms from deducting the cost of bribes paid from their income taxes. Accordingly, the United States should continue to urge the parties to the OECD Convention, as well as other countries that permit tax deductions for the cost of bribes paid to foreign public officials, to eliminate this unfair advantage over American businesses.1997?

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Keenan, Patrick J.https://www.law.illinois.edu/college-directory/PatrickKeenanCurse or Cure? China, Africa, and the Effects of Unconditioned Wealthhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1102789Berkeley Journal of International Law 27 Berkeley J. Int'l. L. 84 (2008)China's investments can lead to human rights abuses because they provide leaders with access to financial resources otherwise denied to them by countries concerned with their abusive behavior. Conditions associated with wealth determine whether it has a positive or negative effect on the recipient and China's recent investments in Africa amount to unconditioned wealth. This raises a real risk that their effect on local populations will, in the end, be negative.2009University of Illinois College of Law: Professor of International Law

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Kim, Joongi & Kim, Jong BumCultural Differences in the Crusade Against International Bribery: Rice-Cake Expenses in Korea and the Foreign Corrupt Practices Acthttps://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=0108221827&pubNum=102037&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Search%29#co_pp_sp_102037_578Pacific Rim Law & Policy Journal 6 Pac. Rim L. & Pol'y J. 549 (1997)The expanding global movement against overseas bribery has emerged as one of the foremost issues in international trade. This paper explores the complex issues surrounding this multilateral anti-bribery movement, particularly focusing on one of the central concerns at the heart of this debate: what type of different cultural perspectives and legal traditions exists regarding questionable payments and whether they need to be respected. This study approaches this subject by discussing how the Korean legal system distinguishes between permissible gifts such as "rice-cake expenses" and illicit payments. In the process, the new legal interpretations that were developed by the Korean judiciary in the sensational slush fund trials of former presidents Chun Doo-Hwan and Roh Tae-Woo are reviewed. In conclusion, this paper suggests that an international consensus against foreign bribery might be able to better harmonize concerns such as cultural differences by incorporating certain elements of the U.S. Foreign Corrupt Practices Act.1997Hongik University (Seoul, Korea): Professor of Law & Research Fellow, Korea Institute for International Economic Policy

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Klaw, Bruce W.http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1729322A New Strategy for Preventing Bribery and Extortion in International Business Transactionshttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2123715Harvard Journal on Legislation 49 Harv. J. on Legis. 67 (2012)Over the last thirty-five years, governments worldwide have been engaged in an important and laudable battle against bribery in international business transactions. The core of the U.S. anti bribery strategy is the Foreign Corrupt Practices Act, a federal law that imposes criminal penalties on those — and only those — who give bribes to foreign officials and that largely relies on voluntary disclosure to detect such corruption. This supply-side criminalization strategy, however, is ineffective, incomplete, inefficient, and inequitable. It punishes many extorted persons who do not deserve it and largely fails to punish the corrupt foreign officials who do. By punishing companies that voluntarily disclose their payments and denying them opportunities to recover their losses from extortion, it also establishes a perverse incentive structure that virtually ensures bribery will remain secret in most cases. The focus of the U.S. strategy should be shifted to prevention, not punishment. To this end, Congress should decriminalize the giving of bribes, replacing it with a robust mandatory disclosure regime that will enable foreign countries and business competitors to take action against willing bribe givers and allow victims of extortion to shield themselves from needless litigation, while obtaining meaningful restitution for the losses they have incurred. The U.S. government should then use the mandatory reports of unwilling payments to criminally prosecute the corrupt foreign officials who demand such payments, if foreign governments are unwilling or unable to do so.2012Keimyung University, College of Law and Police Science: Professor of Law

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Klich, Agnieszkahttp://www.chadbourne.com/aklich/Bribery in Economies in Transition: The Foreign Corrupt Practices Acthttps://a.next.westlaw.com/Document/Ib7360b215abe11dbbe1cf2d29fe2afe6/View/FullText.html?originationContext=citingReferences&transitionType=Document&contextData=%28sc.Search%29&docSource=d1ec076588b641acbdd3f7ca12f06287&rank=3Stanford Journal of International Law 32 Stan. J. Int'l L. 121 (1996)Part I of this note provides an overview of the FCPA and analyzes alternative definitions of corruption. Part II identifies the causes and effects of corruption in a privatizing economy based on the experience of Russia. Part III discusses the issues raised by the application of the FCPA in economies in transition. Finally, Part IV suggests measures that could clarify the issues associated with corruption in economies in transition.1996Chadborne & Parke: Partner

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Koehler, Mikehttp://works.bepress.com/mike_koehler/Big, Bold, and Bizarre: The Foreign Corrupt Practices Act Enters a New Erahttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1971021University of Toledo Law Review 43 U. Toledo L. Rev. 1 (2011)In Part I of this article, the author demonstrates that a new era of Foreign Corrupt Practices Act ("FCPA") enforcement has indeed arrived. Using 2010 FCPA enforcement actions and related developments, the author shows how big FCPA enforcement has become and asks why a "new era" has arrived given that the FCPA itself has not changed since 1998. The author demonstrates that much of the largeness of FCPA enforcement in 2010 was the result of bold enforcement theories that seemingly conflict with congressional intent in enacting the FCPA. Part I of this article also demonstrates that FCPA enforcement in 2010 was more than just big and bold: it was also bizarre. Among other things, FCPA enforcement suffers from several inherent contradictions; and despite lofty anti-bribery rhetoric from the enforcement agencies, bribery and corruption is tolerated by certain companies in certain industries and for other strategic reasons. Against the backdrop of a big, bold, and bizarre year in FCPA enforcement, Part II of this article highlights how 2010 was also defined by increased scrutiny of the FCPA itself and FCPA enforcement by the judiciary, Congress, the FCPA bar, and international monitor groups. Part III of this article highlights 2010 developments related to the FCPA and FCPA enforcement, such as debarment issues and passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act. This article concludes with Part IV, a look at the road ahead, as this new era of enforcement begins. 2011Butler University: Professor of Business Law

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Koehler, Mikehttp://works.bepress.com/mike_koehler/The Facade of FCPA Enforcementhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1705517Georgetown Journal of International Law 41 Geo. J. Int'l L. 907 (2010)Against the backdrop of aggressive enforcement and the resulting multi-million dollar fines and penalties is the undeniable fact that, in most instances, there is no judicial scrutiny of the FCPA enforcement theories. Because of the "carrots" and "sticks" relevant to resolving a government enforcement action, FCPA defendants are nudged to accept resolution vehicles notwithstanding the enforcement agencies' untested and dubious enforcement theories or the existence of valid and legitimate defenses. The end result is often the facade of FCPA enforcement. This article exposes the facade of FCPA enforcement, argues that addressing the facade and subjecting FCPA enforcement actions to greater judicial scrutiny is in the public interest, and encourages more FCPA defendants to challenge the enforcement agencies and further expose the facade of FCPA enforcement.2010Butler University: Professor of Business Law

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Koehler, Mikehttp://works.bepress.com/mike_koehler/The Foreign Corrupt Practices Act In The Ultimate Year Of Its Decade Of Resurgencehttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1599725Indiana Law Review 43 Ind. L. Rev. 389 (2010)The Foreign Corrupt Practices Act (FCPA) was enacted in 1977, yet FCPA enforcement was largely non-existent for most of its history. But during the past decade, enforcement agencies resurrected the FCPA from near legal extinction. FCPA enforcement activity in 2009, the ultimate year in the decade of the FCPA's resurgence, suggests that FCPA enforcement will remain a prominent feature on the legal landscape throughout this decade. After providing a brief overview of the FCPA and FCPA enforcement, this Article highlights FCPA issues and trends from the 2009 enforcement year and provides a glimpse of the road ahead as the FCPA enters a new decade. 2010Butler University: Professor of Business Law

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Krever, TorCurbing Corruption? The Efficacy of the Foreign Corrupt Practices Act (NOTE)http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1761695North Carolina Journal of International Law and Commercial Regulation 33 N.C. J. Int'l L. & Com. Reg. 83 (2007)Corruption of public officials, in particular bribery, has long been recognized as a potentially serious problem in every polity. Large foreign corporations, based in developed jurisdictions, are identified as common culprits. The first legislation in the world to recognize and seek to curb the contribution of domestically based corporations to foreign corruption was the U.S. 1977 Foreign Corrupt Practices Act. The Act criminalizes the payment of bribes to foreign officials for the purpose of obtaining or retaining business. I analyze the efficacy of the Act, and argue that it has had only limited success in curbing foreign bribery. This article contributes to the existing literature by considering what impact recent domestic and international developments will have on the Act's likely future effectiveness. Specifically, it suggests that the internationalization of anti-corruption efforts and recent increased and expanded domestic enforcement reduce the potential costs to business competitiveness and add new momentum to the Act's effectiveness. The ultimate impact of these developments will depend on the ongoing commitment of all parties to curb supply-side corruption. 2007Law clerk to Deputy Chief Justice Dikgang Moseneke of the South African Constitutional Court [Student Note]

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Levy, Robert S.http://www.lawyers.com/Pennsylvania/Drexel-Hill/Robert-S-Levy-1511610-a.htmlThe Antibribery Provisions of the Foreign Corrupt Practices Act of 1977: Are They Really As Valuable As We Think They Are? (NOTE)https://a.next.westlaw.com/Document/If8e1f9804a5b11db99a18fc28eb0d9ae/View/FullText.html?transitionType=UniqueDocItem&contextData=%28sc.Search%29Delaware Journal of Corporate Law 10 Del. J. Corp. L. 71 (1985)This note examines the inconsistencies of the FCPA as well as the impracticality of its antibribery provisions. The discussion also analyzes the proposed amendments to the FCPA, addressing both their economic and political implications. This is followed by an analysis of the legislative history of the Act and consideration of the question of whether the antibribery provisions have accomplished the purposes originally intended.1985Halpern & Levy: Partner

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Li, Linghttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=735611Performing' Bribery in China - Guanxi-Practice, Corruption with a Human Facehttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1712390Journal of Contemporary China, 20 J. of Contemp. China 1 (2010)Unlike most current academic studies on corruption in China, focusing on the theme of how the political, economic and social environments have caused corruption at the macro-level, this paper takes a micro-view, concentrating on how corruption, notably bribery, takes place between a briber and the bribed. Moreover, it examines what role in specific guanxi-practice plays in corruption exchanges and, more importantly, why it constitutes a critical element. Through in-depth case-studies and extensive fieldwork, this paper comes to the conclusion that the micro-level operation of corruption in China is not an aggregation of sporadic acts but follows certain rules and codes of conduct, which should be seen as an informal institutional mechanism facilitating the contracting process of corrupt exchange. This paper also demonstrates that guanxi-practice embodies such rules and codes of conduct. It not only minimizes the otherwise prohibitive transactional cost of corrupt exchange but also prepares the bribed to overcome the possibly also prohibitive moral cost by grafting a corrupt agreement to a social setting, in which corruption is redefined and venality is neutralized and rationalized. Therefore, this paper contends that the causality link between guanxi-practice and corruption is the inverse of the view held by many. It is not that the participants of corruption are compelled to corrupt conduct because of the existence of the guanxi-practice, but on the contrary, these participants adopt guanxi-practice as an enabling operating mechanism that facilitates corruption. 2010NYU School of Law, US-Asia Law Institute: Senior Research Fellow

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Morgan, Steven M.http://www.mediation.com/memberprofile/steven-m-morgan-77002-db.aspxIn Search of an International Solution to Bribery: The Impact of the Foreign Corrupt Practices Act of 1977 on Corporate Behaviorhttp://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/vantl12&div=27&id=&page=Vanderbilt Journal of Transnational Law 12 Vand. J. Transnat'l L. 359 (1979)This note explores the background of the FCPA, the policy behind its enactment, and provides a detailed dicussion of problems within the law. The article also discusses international efforts to eradicate bribery of government officials in all countries. 1979Waste Management, Inc.: Vice President & General Counsel

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Nichols, Philip M. https://lgst.wharton.upenn.edu/profile/1135/Are Extraterritorial Restrictions on Bribery a Viable and Desirable International Policy Goal Under the Global Conditions of the Late Twentieth Century?: Increasing Global Security by Controlling Transnational Briberyhttps://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=0112639141&pubNum=3181&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Search%29#co_pp_sp_3181_476Michigan Journal of International Law 20 Mich. J. Int'l. L. 451 (1999)The idea that transnational bribery must be controlled, and the legislation that could implement the idea, are in fact desirable policy choices. Transnational bribery constitutes a significant threat to global security. As such, its control is the right and the obligation of every polity that is able to do so. This paper argues that global security can no longer be evaluated in the realist terms of the sovereignty of nations, and that global insecurity does not arise merely from a handful of relatively straightforward issues. As an analytical tool, this paper turns instead to the concept of "complex interdependence" put forward by Robert Keohane and Joseph Nye. This paper then demonstrates how transnational bribery damages the quality of transnational relationships, thus endangering global security.19 The paper concludes by examining empirical observations. Empirically, transnational bribery has contributed significantly to global instability. On the other hand, no empirical observations suggest that extraterritorial control of transnational bribery leads to global disharmony, or decreases the level of commerce or cooperation among nations.1999University of Pennsylvania: Professor of Legal Studies and Business Ethics

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Nichols, Philip M. https://lgst.wharton.upenn.edu/profile/1135/The Business Case for Complying with Bribery Lawshttps://a.next.westlaw.com/Document/I31c69baab10411e18b05fdf15589d8e8/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad6040400000138345ba2a8a7112bf8%3FNav%3DANALYTICAL%26fragmentIdentifier%3DI31c69baab10411e18b05fdf15589American Business Law Journal 49 Am. Bus. L.J. 325 (2012)This article first clarifies the definitions of bribery and corruption. The article then examines direct and indirect costs of paying bribes and the effect of corruption on potential relationships. Finally, the article discusses potential criminal liability, particularly in light of the expansive international legal regime. The totality of these costs and liabilities strongly suggests that the consequences for any given firm of paying a bribe would burden rather than benefit the firm.2012University of Pennsylvania: Professor of Legal Studies and Business Ethics

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Nichols, Philip M. https://lgst.wharton.upenn.edu/profile/1135/Regulating Transnational Bribery in Times of Globalization and Fragmentationhttps://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=0110524358&pubNum=100447&originationContext=document&transitionType=DocumentItem&contextData=%28sc.DocLink%29#co_pp_sp_100447_272Yale Journal of International Law 24 Yale J. Int'l L. 257 (1999)This Article's conclusion--that practical and moral considerations require prohibition of transnational bribery--stems from the anomaly of current global conditions. As part of a process called globalization, economic relationships increasingly involve persons in more than one polity. At the same time, as part of a process called fragmentation, lawmaking is becoming more localized. Thus, the economic communities created through globalization do not enjoy the support of institutions normally associated with economic activity. Such institutions--including law--must be cobbled together from the institutions of various countries. This Article analyzes transnational bribery in the context of the above-described anomaly. In particular, this Article examines the growth in and harms attendant to transnational bribery. The Article then evaluates alternatives to home country prohibitions, and determines that these alternatives alone are insufficient. Finally, this Article evaluates arguments against prohibitions of transnational bribery, and determines that these arguments do not detract from the attractiveness of such laws as a policy choice under current global conditions. 1999University of Pennsylvania: Professor of Legal Studies and Business Ethics

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Obidairo, Thomas Simeonhttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=551883The Prospective Role of Anti-Corruption Conventions in Curbing Transnational Bribery by Corporations (NOTE)http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1148167Working PaperThis 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. 2005School of Oriental and Africa Studies, University of London: PhD Candidate [Student Note]

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Ong, Allan Verman YapThe Rise of the Prosecutorial Efforts in Foreign Corruption: Lessons Learned from Recent FCPA Cases (NOTE)http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1577444Columbia Journal of Asian LawThis paper surveys the five notable cases that illustrate the aggressiveness of the SEC and the DOJ in pursuing FCPA violators, but these cases are important because they provide indicators of possible directions that FCPA enforcements can take. DPC tells us of the unique FCPA risks of doing business in China. CCI tells us that although not penalized under the FCPA, the bribery of private parties can also be a criminal act under state law and can be part and parcel of FCPA enforcement in certain instances. Siemens highlights the extent that the SEC will take if the company neglects to take note of its obligations under the FCPA. Bourke tells us that one should be careful of the possibility of being dragged into an FCPA enforcement arising from acts that one did directly do. And FTI tells us that shareholders also suffer damages in FCPA incidents, often from the plunge of stock prices, and have been making forays into using FCPA-related internal control issues to support securities class action lawsuits. Taking from the lessons of these individual cases, the paper concludes with prescriptions on how to upgrade a company’s FCPA compliance program so that directors and officers can help their companies, and themselves, avoid FCPA violation and liability. 2010Peking University: Student

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Pacini, Carlhttp://ruby.fgcu.edu/courses/cpacini/bio.htmlThe Foreign Corrupt Practices Act: Taking a Bite out of Bribery in International Transactionshttps://a.next.westlaw.com/Document/I95b0d7cfb12011e18b05fdf15589d8e8/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad60409000001387c21d904a9ec2545%3FNav%3DANALYTICAL%26fragmentIdentifier%3DI95b0d7cfb12011e18b05fdf15589Fordham Journal of Corporate and Financial Law 17 Fordham J. Corp. & Fin. L. 545 (2012)Enforcement of the Foreign Corrupt Practices Act ("FCPA") has reached an all-time high. FCPA violations can result in many significant costs, both monetary and non-monetary. FCPA compliance has become a top corporate governance issue and has triggered shareholder litigation, tax investigations, and money laundering probes. While many corporate managers, financial officers, board members, internal and external auditors, and forensic accountants are aware of the FCPA's basic objectives and mandates, many may not do an adequate job of protecting their firms and/or clients from the dangerous consequences that can result from FCPA non-compliance. The purposes of this paper are to: (1) analyze and describe bribery and FCPA case filings, sanctions, payments (bribes), and value of business to be obtained; (2) describe and analyze the important provisions of the FCPA; and (3) make recommendations to help firms improve their compliance with the FCPA.2012Florida Gulf Coast University: Professor of Accounting and Business

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Pacini, Carl & Rogers, Hudson http://ruby.fgcu.edu/courses/cpacini/bio.htmlThe Role of the OECD and EU Conventions in Combating Bribery of Foreign Public Officialshttp://www.mendeley.com/research/the-role-of-the-oecd-and-eu-conventions-in-combating-bribery-of-foreign-public-officials-1/Journal of Business Ethics 37 J. Bus. Ethics 385 (2002)The purposes of this article are to: describe the nature and consequences of bribery (specifically, the undermining of respect for human rights); outline the major provisions of the OECD Convention, and; analyze its role in promoting transparency and accountability in international business. While the OECD Convention is not expected to totally eliminate the seeking or taking of bribes, there are hopes that a uniform set of rules will curtail corrupt behavior, as long as those rules are both enforceable and enforced.2002Florida Gulf Coast University (FGCU): Professor of Business & FGCU: Dean, Lutgert College of Business

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Posadas, AlejandroCombating Corruption Under International Law (NOTE)http://papers.ssrn.com/sol3/papers.cfm?abstract_id=240706Duke Journal of Comparative and International Law 10 Duke J. Comp. & Int'l L. 345 (2000)This Article revisits the history of international law's anti-corruption efforts in order to generate questions about the current status and future direction of the fight against corruption under international law. By stepping back and reviewing how international law has struggled with an issue traditionally considered to fall within the exclusive domain of national law and politics, this Article argues that the lessons of these developments are helpful, not only in understanding the current status of anti-corruption initiatives, but also in generating the questions and propositions for the future development of this field of international law. This is necessary to contribute to the emerging efforts to combat corruption worldwide in a more balanced, creative, and effective way. Part II of this Article reviews the issue's origins in the investigations into illicit transnational corporate payments conducted aftermath of the Watergate scandal. Part III reviews the emergence and development of international anti-corruption initiatives from the nineties to the present. Part IV elaborates on the lessons learned from this history lesson, describes the current status of international anti-corruption initiatives, and raises some questions regarding the measures to combat bribery and corruption under international law. 2000Duke University School of Law: Fellow & Doctoral Student [Student Note]

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Rose-Ackerman, Susan http://www.law.yale.edu/faculty/roseackermanbio.htmCorruption: Greed, Culture and the Statehttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1648859Yale Law Journal Online 120 Yale L.J. 125 (2010)The article examines the economic aspects of corruption and then advocates an approach to combat corruption via democratic reform. Specifically, higher governmental transparency, more external governmental oversight in the case of grand corruption, more transparency when the government negotiates contracts, bribery laws should be enforced against those inside and out of government, and individuals / businesses should have a mechanism to reports bribes and other types of illegal activity. 2010Yale Law School: Professor of Law Political Science

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Rose-Ackerman, Susan http://www.law.yale.edu/faculty/roseackermanbio.htmCorruption and Government: Causes, Consequences, and Reform http://papers.ssrn.com/sol3/papers.cfm?abstract_id=189828Cambridge University Press, 1999Developing countries and those making a transition from socialism are particularly at risk, but corruption is a worldwide phenomenon. Corruption creates inefficiencies and inequities, but reforms are possible to reduce the material benefits from payoffs. Corruption is not just an economic problem, however; it is also intertwined with politics. Reform may require changes in both constitutional structure and the underlying relationship of the market and the state. 1999Yale Law School: Professor of Law Political Science

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Rose-Ackerman, Susan http://www.law.yale.edu/faculty/roseackermanbio.htmGrand' Corruption and the Ethics of Global Businesshttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=191352Yale Law School, Program for Studies in Law, Economics and Public Policy, Working Paper No. 221To understand why the avoidance of corruption is an ethical issue for business one needs to understand: first, that a justification for paying bribes depends on both a notion of the proper role of the business firm and on a claim of little or no harm to the country involved; second, that the ethical obligations of multinational businesses and their managers vary when they operate in a corrupt environment; and lastly, what international efforts are currently underway to limit corruption and why those efforts may lead to even greater ethical dilemmas. 1999Yale Law School: Professor of Law Political Science

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Rose-Ackerman, Susan & Hunt, Sineadhttp://www.law.yale.edu/faculty/roseackermanbio.htmTransparency And Business Advantage: The Impact Of International Anti-Corruption Policies On The United States National Interesthttps://a.next.westlaw.com/Document/I6c074799936d11e18b05fdf15589d8e8/View/FullText.html?navigationPath=%2FRelatedInfo%2Fv4%2Fkeycite%2Fnav%2F%3Fguid%3DI6c074799936d11e18b05fdf15589d8e8%26orgGuid%3DI17b21351135011dca59cd37d95b0846e%26category%3DCitingRefeNew York University Annual Survey of American Law 67 N.Y.U. Ann. Surv. Am. L. 433 (2012)In Part I, the authors introduce the basic legal framework that seeks to constrain corruption in international business. There are three basic sources of legal constraints. The first source derives its authority from the FCPA and its generalization, the OECD Anti-Bribery Convention. The second is the United Nations Convention Against Corruption, which covers a broader range of countries and corrupt activities. Finally, one section of the Dodd-Frank Act requires firms in extractive industries to report payments under rules similar to those governing the Extractive Industries Transparency Initiative, a voluntary effort. In Part II, the authors make their basic argument concerning the proper way to compute the costs for the U.S. economy, as opposed to the costs only to U.S. firms. In Part III, the authors discuss the potential long-term benefits of vigorous enforcement and of ongoing soft-law initiatives. Finally, the authors conclude in Part IV with a return to the Chamber's claims.2012Yale Law School: Professor of Law Political Science & Yale Law School: Class of 2013

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Rose-Ackerman, Susan & Truex, Roryhttp://www.law.yale.edu/faculty/roseackermanbio.htmCorruption and Policy Reformhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2007152
Yale Law & Economics Research Paper No. 444
This paper presents six linked types of reforms that can be part of an overall anti-corruption strategy, including external monitoring and enforcement combined with the punishment of wrongdoers. The article then concentrates on bottom-up reforms under which the victims of corruption help to limit its incidence, followed by a discussion of internal civil controls as well as control of high-level corruption that distorts infrastructure projects, defense spending, privatization of public assets, and concession contracts. Concluding with an effort to locate situations where the private market can substitute for the state to limit corrupt incentives, the article reflects on the state of the art of quantitative research on corruption and its reform. 2012Yale Law School: Professor of Law Political Science

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Salbu, Steven R.http://www.gatech.edu/newsroom/biographies.html?bio=CoMBribery in the Global Market: A Critical Analysis of the Foreign Corrupt Practices Acthttps://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=0107628250&pubNum=1282&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Search%29Washington and Lee Law Review 54 Wash. & Lee L. Rev. 229 (1997)The U.S. approach to bribery under the FCPA is severe by global standards. The United States is the only nation that has criminalized the extraterritorial payment of bribes by domestic companies. This article assesses and ultimately rejects the FCPA approach as akin to moral imperialism. Subpart Aof this article outlines a wide range of recent global efforts to eliminate bribery. Subpart B provides examples of corruption or alleged corruption in the 1990s, demonstrating the pervasiveness and persistence of the problem. Subpart C out-lines the challenges Congress faces as a result of the observations made in subparts A and B.1997Georgia Institute of Technology: Dean and Stephen P. Zelnak chairholder

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Salbu, Steven R.http://www.gatech.edu/newsroom/biographies.html?bio=CoMThe Foreign Corrupt Practices Act as a Threat to Global Harmonyhttps://a.next.westlaw.com/Document/Ic65592115a2811dbbe1cf2d29fe2afe6/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad705250000013820236ac48954ef40%3FNav%3DANALYTICAL%26fragmentIdentifier%3DIc65592115a2811dbbe1cf2d29fe2Michigan Journal of International Law 20 Mich. Int'l J. 419 (1999)This article examines the political hazard in greater detail, explaining why the proliferation of FCPA-style legislation unjustifiably increases the threat to global harmony. Section II examines why today's distinctions between acceptable behavior and bribery remain a cultural construct. Section III suggests it is imprudent to make subtle moral distinctions extraterritorially under conditions of cultural heterogeneity. Section IV compares two potential ways to address global bribery: encouraging the adoption of strong domestic anti-bribery legislation and enforcement through persuasion, and imposing transnational rule via extraterritorial legislative fiat. Section V discusses the ways in which the "persuasion for domestic enforcement" approach can avert the threat of global dissension inherent in the "extraterritorial legislation" approach.1999Georgia Institute of Technology: Dean and Stephen P. Zelnak chairholder

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Salbu, Steven R.http://www.gatech.edu/newsroom/biographies.html?bio=CoMInformation Technology in the War Against International Bribery and Corruption: The Next Frontier of Institutional Reformhttps://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=0283256465&pubNum=1155&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Search%29#co_pp_sp_1155_89&sk=3.wWcBt8Harvard Journal on Legislation 38 Harv. J. on Legis. 67 (2001)Bribery of public officials has become a worldwide epidemic, prompting an international debate on how to best combat corruption.This Article surveys recent reform efforts aimed at curbing corruption. In particular, he discusses two broad categories of reform: legislative and institutional. Both domestic and extraterritorial legislation, he argues, have proven to be ineffective and inefficient. Instead of further legislative reform, efforts should be shifted to altering underlying institutions in order to remove incentives for corruption. Through the diffusion of information technology, the world can better monitor bribery, and a level of value convergence will be reached in which corruption is more universally disfavored.2001Georgia Institute of Technology: Dean and Stephen P. Zelnak chairholder

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Salbu, Steven R.http://www.gatech.edu/newsroom/biographies.html?bio=CoMTransnational Bribery: The Big Questionshttps://a.next.westlaw.com/Document/I678187715ac911dbbe1cf2d29fe2afe6/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad70525000001381ff406848954d7f5%3FNav%3DANALYTICAL%26fragmentIdentifier%3DI678187715ac911dbbe1cf2d29fe2Northwestern Journal of International Law and Business 21 Nw. J. Int'l L. & Bus. 435 (2001)What are these questions? Section II asks, can it be ethical to pay a bribe, and if so, should our laws recognize this? Section III asks whether the FCPA's notion of "routine government actions" creates a viable standard for distinguishing acceptable and unacceptable payments. Section IV queries whether corporate principles can have a meaningful impact in the battle against global corruption. Section V asks whether NGOs should supplant government action in fighting global corruption.2001Georgia Institute of Technology: Dean and Stephen P. Zelnak chairholder

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Schroth, Peter W.The United States and the International Bribery Conventionshttps://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=0289654366&pubNum=1433&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Search%29#co_pp_sp_1433_593American Journal of Comparative Law 50 Am. J. Comp. L. 593 (2001)This article outlines the history of the United States' relationship with anti-corruption and anti-bribery legislation, specifically the FPCA.The article tracks the development of the FCPA, its ratification and implementation, as well as the international response to the Act. This article ends with the conclusion that the beneficial effect in developing nations of implementation of the OECD and OAS Conventions will not be an immediate reduction of local corruption, or even an immediate increase in foreign investment, but rather perhaps a lowering of the world level of corruption over a longer period, influencing the more corrupt countries by the visible association of reduced corruption and increased wealth.2001Rensselaer Polytechnic Institute: Professor of International Finance

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Segal, PhilipComing Clean on Dirty Dealing: Time for a Fact-Based Evaluation of the Foreign Corrupt Practices Act (NOTE)https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=0329476698&pubNum=101788&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Keycite%29#co_pp_sp_101788_171Florida Journal of International Law 18 Fla. J. Int'l L. 169 (2006)Because the actual or intended flow of money or "anything of value" from briber to the bribee is a necessary element to prove a crime of bribery, increasing the difficulty of tracing money is a critically important part of any corrupt enterprise's operation if it wishes to avoid detection. The article embraces the ideas that: bribery of public officials abroad is, for the most part, harmful to the citizens of the particular country; bribery is seldom "culturally appropriate"; the level of optimal enforcement of the FCPA is greater than what exists at present; and that bribery is a two-sided transaction.2006Yale Law School [Student Note]

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Shaw, BillThe Foreign Corrupt Practices Act and Progeny: Morally Unassailable (NOTE)https://a.next.westlaw.com/Document/I1a12a3c123ba11dbbab99dfb880c57ae/View/FullText.html?navigationPath=%2FRelatedInfo%2Fv4%2Fkeycite%2Fnav%2F%3Fguid%3DI1a12a3c123ba11dbbab99dfb880c57ae%26ss%3D0110317047&listSource=RelatedInfo&list=CitingReferences&rank=0Cornell International Law Journal 33 Cornell Int'l L.J. 689 (2000)Part I identifies the devastating effects of bribery on emerging nations and the proposed substantial benefits that these countries might reap from international efforts to reduce corrupt practices. Part II discusses the Foreign Corrupt Practices Act and recent international efforts to address the problem of international bribery, specifically emphasizing that the United States is no longer the lone adversary of corrupt practices. Part III addresses the arguments advanced by critics that describe these efforts as "moral imperialism" and advance the idea that market efficiency will remedy the problem without legal efforts. Part IV highlights recent cases involving prosecution under the FCPA and how these cases augment the transparency of the FCPA. Part V addresses justifications for anti-corruption measures.2000University of Texas [Student Note]

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Sheahen, Kylehttp://www.martindale.com/Kyle-Sheahen/157109536-lawyer.htmI'm Not Going to Disneyland: Illusory Affirmative Defenses Under the Foreign Corrupt Practices Acthttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1657675Wisconsin International Law Journal, ForthcomingThis article analyzes the two affirmative defenses provided by the Foreign Corrupt Practices Act (FCPA) and argues that the defenses are virtually useless in practice. Recent restrictive judicial interpretation, developing international business customs and the statutory language itself have rendered the defenses – the local law defense and the promotional expenses defense – meaningless for FCPA defendants at trial. This article describes the problems with the defenses and suggests that Congress modify existing law to allow for greater fairness in FCPA prosecutions. 2010King & Spalding, LLP: Associate [Student Note]

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Spahn, Elizabeth http://www.nesl.edu/faculty/full_time.cfm?facid=38International Bribery: The Moral Imperialism Critiqueshttp://scholar.google.com/scholar_url?hl=en&q=http://lawweb3.law.umn.edu/uploads/Kp/DN/KpDNXy9nk-_D1nwLPhXWMA/Spahn-Final-Online-PDF-03.30.09.pdf&sa=X&scisig=AAGBfm2UnzLmsSJFoiwtIH1uOiPziRA4eg&oi=scholarrMinnesota Journal of International Law 18 Minn. J. Int'l L. 155 (2009)This article presents the problem of bribery in international business as it relates to consumers of globally produced products as well as to any progressive reform efforts in poverty reduction, environmental protection, or human rights. This article examines the idea that before we can begin to address the more technical legal issues involved, law students and their professors need to explore our underlying attitudes about whether international bribery should be considered a criminal activity at all. By criminalizing bribery, the US may be forcibly and unilaterally imposing its own values on foreign cultures.2009New England Law School: Professor of Law

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Spahn, Elizabeth http://www.nesl.edu/faculty/full_time.cfm?facid=38Nobody Gets Hurt?http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1712902Georgetown Journal of International Law 44 Geo. J. Int'l L. 207 (2010)This article examines the assumptions underlying the justification that corruption is a victimless crime. First, the article reviews recent macro-economic scholarship refuting the older thesis that bribery 'greases the wheels of commerce.' Second, this article provides specific examples of various risk-points in a bribe-transaction, including unreliability of corrupted partners and intermediaries, difficulties establishing fair prices for bribes, and very risky exit strategies. Examples of individual victims of crony relationships between government and business are provided in the third section of the article, including humans injured or killed by 'low quality control' or eroded safety standards including consumers of fake pharmaceuticals, toxic toothpaste, melamine poisoned pet food and lead in children's toys.2010New England Law School: Professor of Law

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Spalding, Andrew Brady http://www.kentlaw.iit.edu/faculty/full-time-faculty/andrew-brady-spaldingFOUR UNCHARTERED CORNERS OF ANTI-CORRUPTION LAW: In Search of Remedies to the Sanctioning Effecthttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2141001Wisconsin Law Review, Wis. L. Rev. 661 (2012)The discourse of the "competitive disadvantage" and the "level playing field" frames the discussion of the FCPA's adverse consequences solely in terms of its effect on business. It makes no mention of any adverse effects on the countries in which the FCPA violations occur; these, almost without exception, are developing countries. Worse yet, the metaphor depicts these countries as mere "fields" on which multinational corporations "play." But that which corporations call an "unlevel playing field" and a "competitive disadvantage" is, from the perspective of developing countries, something altogether more harmful. This article is the third installment in a long-term research project6 which demonstrates that the FCPA now operates as de facto economic sanctions against developing countries. This sanctioning effect occurs when FCPA enforcement leads U.S. corporations to withdraw their capital from developing countries. Like the more familiar (de jure) economic sanctions, this withdrawal of capital too often harms the very people whom our foreign policy ostensibly seeks to protect – the citizens, or victims, of corrupt regimes.Law

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Spalding, Andrew Brady http://www.kentlaw.iit.edu/faculty/full-time-faculty/andrew-brady-spaldingThe Irony of International Business Law: U.S. Progressivism, China's New Laissez Faire, and Their Impact in the Developing Worldhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1795563UCLA Law Review 59 U.C.L.A. L. Rev. 354 (2011)As the financial crisis draws U.S. business overseas and developing countries rise in influence, the regulation of international business has never figured so prominently in federal law. But the dominant paradigm through which academics and policymakers continue to view that law – the so-called "Washington Consensus" – proves deeply misleading. A more accurate account of the components, origins, and aims of U.S. international business law reveals two striking ironies: first, the U.S. no longer represents the comparatively laissez-faire approach to federal business regulation; and second, the rise of an alternative model now substantially thwarts the goals of U.S. progressive regulation. 2011University of Richmond: Professor of Law

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Spalding, Andrew Brady http://www.kentlaw.iit.edu/faculty/full-time-faculty/andrew-brady-spaldingUnwitting Sanctions: Understanding Anti- Bribery Legislation As Economic Sanctions Against Emerging Marketshttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1429207Florida Law Review 62 Fla. L. Rev. 351 (2010)Although the purpose of international anti-bribery legislation, particularly the U.S. Foreign Corrupt Practices Act (FCPA) is to deter bribery, empirical evidence demonstrates a problematic collateral effect. In countries where bribery is perceived to be relatively common, the present enforcement regime goes beyond the deterrence of bribery, and ultimately deters investment. 2010University of Richmond: Professor of Law

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Stein, Alexhttp://www.professoralexstein.com/home.htmlCorrupt Intentions: Bribery, Unlawful Gratuity, and Honest Services Fraudhttps://a.next.westlaw.com/Document/I83403aeb883e11e18b05fdf15589d8e8/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad7051c0000013954f5fa123443f421%3FNav%3DANALYTICAL%26fragmentIdentifier%3DI83403aeb883e11e18b05fdf15589Law and Contemporary Problems 75 Law & Contemp. Probs. 61 (2012)This article advances the understanding of bribery and related offenses from an economic standpoint.1 Economic theory holds that the legal system should impose criminal liability on a person who advances his goals by using force or artifice instead of a voluntary exchange. Force and artifice are inherently coercive behaviors, unresponsive to the market mechanisms that put exchange prices on what people want to achieve. Because market mechanisms cannot control such behaviors, the state should step in and impose criminal punishments on the perpetrators. These punishments should discourage future coercive behavior. Therefore, they ought to be high enough to offset the benefits that perpetrators expect to gain from acting coercively against other people's interests.2012Benjamin N. Cardozo School of Law: Professor of Law

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Stevenson, Drury D. & Wagoner, Nicolas J.FCPA Sanctions: Too Big to Debar?https://a.next.westlaw.com/Document/I4cfaf12d109911e18b05fdf15589d8e8/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad60407000001385d19a67bcfb9786f%3FNav%3DANALYTICAL%26fragmentIdentifier%3DI4cfaf12d109911e18b05fdf15589Fordham Law Review 80 Fordham L. Rev. 775 (2011)Debarment would deter potential wrongdoers and incapacitate actual offenders. The deterrent would induce more firms to comply with the law, which would allow the "too big to debar" problem to diminish over time. To help illuminate these concerns and lend support to the thesis, this Article examines the third largest FCPA-related enforcement action to date: the BAE Systems case. The United States' refusal to debar BAE because of the potential "collateral consequences" provides a case study on the benefits and drawbacks of deterring foreign corruption through suspension and debarment. This Article concludes that the United States must begin to diversify its portfolio of federal contractors so that prosecutors may leverage the legitimate threat of suspension and debarment to more effectively deter foreign corruption.2011South Texas College of Law: Professor of Law & Roger, Morris, and Grover: Partner

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Sutherland, Ewanhttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=927092Bribery and Corruption In Telecommunications- Prosecutions Under the Foreign Corrupt Practices Acthttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1995133TPRC ConferenceThis paper reviews bribery and corruption cases in the telecommunications sector where they have been violations of the Foreign Corrupt Practices Act (FCPA). The Act applies to a very broad class of payments, both in money and in kind, made to officials of foreign governments, including the directors and employees of regulatory agencies and state-owned entities (e.g., manufacturers and carriers). The FCPA is explicitly extraterritorial in scope and expansive in its application, including any transaction that involves a US citizen, any company registered in or trading on a stock exchange in the USA or where funds pass through a bank or agent in the USA. The effectiveness of the FCPA has recently been reviewed by the US Senate. In addition to use of the FCPA, there have been some related executive orders and administrative actions. Given the very high value of privatizations and operating licenses (especially for oligopolistic cellular wireless network services) there are obvious temptations to solicit and to offer bribes in cash or in kind. The Organisation for Economic Cooperation and Development (OECD) has identified certain economic sectors in which the public procurement of supply contracts is "particularly prone to corruption", these include armaments, mining and telecommunications. Additionally, the rates charged by some carriers for the termination of international calls, often far above the real costs, creates opportunities to offer discounts in return for kickbacks.
2011University of Witwatersrand, LINK Centre; University of Namur, CRIDS

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Swanson, ToddGreasing the Wheels: British Deficiencies in Relation to American Clarity in International Anti-Corruption Law(NOTE)https://a.next.westlaw.com/Document/I17b21351135011dca59cd37d95b0846e/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad60406000001389fb89419f634b6b6%3FNav%3DANALYTICAL%26fragmentIdentifier%3DI17b21351135011dca59cd37d95b0Georgia Journal of International and Comparative Law 35 Ga. J. Int'l & Comp. L. 397 (2007)This Note demonstrates that Britain's complex and ambiguous statutory language creates doubt as to the enforceability of anti-bribery law on British companies, which may concern competing U.S. companies. Part II of this Note entertains a discussion of the history in international bribery law, including a recounting of the American-led creation of the OECD Convention. Part III contains an in-depth look at each states' implementing legislation, the U.S.'s Foreign Corrupt Practices Act and the U.K.'s corresponding corruption laws. Part IV discusses the adequacy of both the American and British implementations of the OECD Convention, as well as the differences between American and British anti-bribery law. Part V concludes with a recommendation of what actions Britain should take with regard to satisfying its international obligation, including a look at the proposed Draft Corruption Bill that may in fact be a sound implementation of the OECD Convention.2007University of Georgia [Student Note]

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Taylor, Jennifer DawnAmbiguities in the Foreign Corrupt Practices Act: Unnecessary Costs of Fighting Corruption? (COMMENT)http://digitalcommons.law.lsu.edu/lalrev/vol61/iss4/Louisiana Law Review 61 La. L. Rev. 861 (2001)Unnecessary costs are imposed on American companies conducting business abroad due to uncertainties in complying with the Act's provisions. Additional costs result from uncertainty among businesses as to whether potential conduct maybe a violation. Uncertainties deter businesses from engaging in foreign transactions and encourage overly cautious behavior. Clarifying ambiguities in the FCPA could reduce costs to American businesses by minimizing uncertainty in conducting business activity overseas. Greater certainty would strengthen the Act's objectives in eliminating corruption by promoting a policy that more effectively balances the costs and benefits of compliance.2001Louisiana School of Law [Student Comment]

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Turk, Matthew http://www.sullcrom.com/lawyers/MatthewC-Turk/Reforming the Foreign Corrupt Practices Act to Reduce Rent Seeking and Better Deter Transnational Bribery (NOTE)http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025697Working PaperProhibitions against transnational bribery suffer from a paradoxical problem of simultaneous over- and under-enforcement. This article presents a solution that resolves the political economy dysfunctions of the current enforcement regime and proposes reforming the FCPA as follows: (1) the SEC should cease retaining profits disgorged by corporate defendants; (2) disgorgements should be transferred to the Host country where the bribe took place, conditional on the Host government's cooperation with the FCPA investigation; and (3) if cooperation is not forthcoming, disgorgement proceeds should be transferred to the OECD Working Group2012Sullivan & Cromwell, LLP: Associate [Student Note]

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Warin, Joseph F., et al.http://www.gibsondunn.com/lawyers/fwarinThe British are Coming!: Britain Changes its Law on Foreign Bribery and Joins the International Fight Against Corruptionhttps://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=0357115551&pubNum=1480&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Keycite%29#co_pp_sp_1480_30Texas International Law Journal 46 Tex. Int'l L.J. 1 (2010)This article compares the Bribery Act to its U.S. analogue, the Foreign Corrupt Practices Act (FCPA), and examines the Bribery Act's potential effect on global anti-corruption enforcement efforts. Part I provides background on the Act and addresses the parliamentary process through which it passed into law. Part II compares the Act's provisions to the key provisions of the FCPA and discusses the potential impact of the Act on businesses in the United Kingdom and worldwide. Part III describes the self-disclosure framework established by the SFO--the prosecutorial entity primarily charged with the Bribery Act's enforcement--and compares this approach to that taken by DOJ and the U.S. Securities and Exchange Commission (SEC) in enforcing the FCPA. Finally, Part IV considers the potential future of cooperation between U.K. and U.S. anti-corruption enforcement authorities.2010Gibson, Dunn & Crutcher LLP: Partner

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Waziri, Fatimahttp://ng.linkedin.com/pub/dr-fatima-waziri/44/206/74United States of America's Foreign Corrupt Practices Act (FCPA) and Its Effects on Nigeriahttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1915698Working PaperThe U.S. Foreign Corrupt Practices Act of 1977 ("FCPA") generally prohibits U.S. companies and citizens, foreign companies listed on a U.S. stock exchange, or any person acting while in the United States, from corruptly paying or offering to pay, directly or indirectly, money or anything of value to a foreign official to obtain or retain business (the "Anti bribery Provisions"). The FCPA exempts "facilitating" payments which are usually small payments that are designed to get a foreign official to perform a non-discretionary function. However, this facilitation payment has proved to be burdensome on third world countries like Nigeria and should not be encouraged. 2011Nigerian Institute of Advanced Legal Studies: Research Fellow

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Webb, Phillipahttp://www.fichl.org/editorial-board/The United Nations Convention Against Corruption: Global Achievement or Missed Opportunity?http://papers.ssrn.com/sol3/papers.cfm?abstract_id=915560Journal of International Economic Law 8 Int'l Econ. L. 191 (2005)This article sets the context for the United Nations Convention Against Corruption by considering the first wave of anticorruption initiatives that occurred at the regional level. It then assesses the significance of this new international convention by examining the negotiating process and the strategic positions of different countries. In particular, it analyzes the four areas that generated the most controversy during the negotiations: asset recovery, private sector corruption, political corruption, and monitoring. Although the Convention contains many innovative provisions, the article suggests that it also suffers from some basic weaknesses that may prevent it from having a real impact on corrupt behavior. 2005International Court of Justice, The Hague: Law Clerk

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Weiss, David C.http://www.linkedin.com/pub/david-weiss/1a/8a8/741The Foreign Corrupt Practices Act, SEC Disgorgement of Profits, and the Evolving International Bribery Regime: Weighing Proportionality, Retribution, and Deterrencehttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1319814Michigan Journal of International Law 30 Mich. Int'l J. 471 (2009)The international framework governing foreign bribery has been in a state of flux during the preceding decade. For the first time since the passage of the Foreign Corrupt Practices Act, countries besides the United States are enforcing statutes prohibiting foreign bribery. Practitioners and academics have not yet analyzed foreign implementing legislation and enforcement levels nor the United States' changing enforcement strategy that has occurred simultaneously with the rise in foreign enforcement. In particular, the Securities and Exchange Commission's use of disgorgement damages has received scant attention despite the fact that it has begun to eclipse the importance of the SEC's express fining authority. Ultimately, the SEC's use of disgorgement damages has yet to cause firms unjustifiable multiple exposure for the same conduct, but as each SEC settlement seemingly sets a new benchmark for the size of disgorgement, multinational firms, corporate counsel, international regulators, and Congress should closely monitor the shifting enforcement climate with an eye toward fostering predictability, uniformity, and fairness for firms operating on a transnational scale. 2009National Basketball Association: Associate Counsel

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Westbrook, Amy Deenhttp://washburnlaw.edu/faculty/westbrook-amy.phpEnthusiastic Enforcement, Informal Legislation: The Unruly Expansion of the Foreign Corrupt Practices Acthttps://a.next.westlaw.com/Document/Ic866eaf144b211e08b05fdf15589d8e8/View/FullText.html?originationContext=docHeader&contextData=%28sc.DocLink%29&transitionType=Document&docSource=42696dd87d7b42449a576f2a5d837e9aGeorgia Law Review 45 Ga. L. Rev. 489 (2011)This Article examines the FCPA and the reasons, methods, results, and legal ramifications of the recent surge in its enforcement. Part II looks at the provisions of the FCPA. Part III will walk through the developments in the 2000s that impelled the surge. Part IV examines the types of enforcement actions being brought and pinpoints some ways in which the law is being changed through these actions. Part IV also looks at the institutional reorganization undertaken by the DOJ and SEC in connection with this enforcement. Part V discusses some of the problems that have resulted from the uncertainty and lack of guidance with respect to the FCPA. Part VI looks at possible analogies or precedents for this type of informal legal development by agency action. Part VII concludes the analysis and suggests ways in which these unruly efforts could be improved.2011Washburn University School of Law: Professor of Law

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Windsor, Duane & Getz, Kathleen A. http://business.rice.edu/OnlineDirectory/PersonnelDetail.aspx?id=3408Multilateral Cooperation to Combat Corruption: Normative Regimes Despite Mixed Motives and Diverse Valueshttps://a.next.westlaw.com/Document/Ib1ca2dc15ad611dbbe1cf2d29fe2afe6/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad705250000013820254d2e8954efc6%3FNav%3DANALYTICAL%26fragmentIdentifier%3DIb1ca2dc15ad611dbbe1cf2d29fe2Cornell International Law Journal, 33 Cornell Int'l L.J. 731 (2000)The present anti-corruption conventions may blossom into much broader initiatives, aimed at much more than merely suppressing business bribery of foreign public officials. Indeed, the anti-corruption campaign is gradually becoming, as was always implicit in the FCPA, a campaign for democracy and market-oriented development. Concern includes the effects of domestic corruption in OECD countries; the costs of endemic foreign corruption to OECD multinational enterprises; and the reportedly now epidemic nature of corruption in developing, emergent, and transition economies.2000Rice University: Professor of Management & American University: Professor of Management

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Yackee, Davidhttp://www.law.wisc.edu/profiles/jyackee@wisc.eduInvestment Treaties and Investor Corruption: An Emergent Defense for Host States?http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1946341
Virginia Journal of International Law, Forthcoming.
Univ. of Wisconsin Legal Studies Research Paper No. 1181
Bilateral investment treaties (BITs) are famously asymmetric. They grant investors rights but not obligations, while imposing upon states obligations unaccompanied by rights. Recent cases suggest, however, that BIT tribunals are poised to recognize a defense to state BIT liability that, in effect, imposes upon investors the obligation to avoid involvement in public corruption in the course of making a treaty-protected investment. In this short article I sketch out the contours of this emergent defense, focusing on the recent investment treaty arbitration between Siemens, A.G. and Argentina. Siemens was awarded $200 million for Argentina's expropriation of its investment, but Siemens voluntarily abandoned the award in response to post-award revelations that Siemens had procured the investment through the systematic bribery of Argentine officials. While the Siemens tribunal never had the chance to rule on the legal consequences of the bribery allegations, jurisprudential trends suggest that it would likely have used the fact of corruption to either decline jurisdiction or to otherwise refuse to recognize Siemens' substantive treaty-based rights. I nonetheless argue that the specific contours of this emerging corruption defense are uncertain, and I suggest model investment treaty text for states that wish to secure their reliable access to it. 2000University of Wisconsin Law School: Professor of Law

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Yockey, Joseph W. http://www.law.uiowa.edu/faculty/yockey.phpFPCA Settlement, Internal Strife, and the 'Culture of Compliance'http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2029241
Wisconsin Law Review, Forthcoming
U Iowa Legal Studies Research Paper No. 12-08
Most enforcement actions brought against firms under the U.S. Foreign Corrupt Practices Act (FCPA) are resolved via a deferred prosecution agreement (DPA) or non-prosecution agreement (NPA). But before federal regulators will consider negotiating over these types of settlement vehicles, they typically weigh a firm's willingness to cooperate with the underlying investigation and whether it promoted a "culture of compliance." As this paper shows, these two factors do not always intersect in ways that serve the best interests of firms at risk for FCPA scrutiny.2011University of Iowa College of Law: Professor of Law

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Yockey, Joseph W. http://www.law.uiowa.edu/faculty/yockey.phpSolicitation, Extortion, and the FCPAhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1896282Notre Dame Law Review, 87 Notre Dame L. Rev 781 (2011)The U.S. Foreign Corrupt Practices Act (FCPA) prohibits firms from paying bribes to foreign officials to obtain or retain business. It is one of the most significant and feared statutes for companies operating abroad. FCPA enforcement has never been higher and nine-figure monetary penalties are not uncommon. This makes the implementation of robust FCPA compliance programs of paramount importance. Unfortunately, regardless of whether they have compliance measures in place, many firms report that they face bribe requests and extortionate threats from foreign public officials on a daily basis. The implications of these demand-side pressures have gone largely unexplored in the FCPA context. This Article helps fill that gap. First, I describe the nature and frequency of bribe solicitation and extortion to illustrate the scope of the problem and the costs it imposes on firms and other market participants. I then argue that current FCPA enforcement policy in cases of solicitation and extortion raises several unique corporate governance and compliance challenges, and ultimately poses a risk of overdeterrence. Though these concerns can be partially addressed through enhanced statutory guidance, I conclude by urging regulators to shift some of their focus from bribe-paying firms in order to directly target bribe-seeking public officials. Confronting the market for bribe demands in this way will help reduce corruption in general while also allowing employees and agents to spend less time worrying about how to respond to bribe requests and more time on legitimate, value-enhancing transactions. 2011University of Iowa College of Law: Professor of Law