The Transnationalization of Anti-Corruption Law

ForewordPrefaceAcknowledgementsAbbreviationsThe transnationalization of anti-corruption lawCorruptionDefining corruptionThe effects of corruptionTransnationalization of lawThe global anti-corruption regimeDomestic activitiesPrivate dispute settlementInternational instrumentsCivil society and international financial institutionsThis bookI: International, regional, and domestic sources of anticorruption law - eclecticism or convergence?II: Traditional methods reconsideredIII: The new frontiers of complianceIV: Anti-corruption considerations in international dispute resolutionV: Challenges in the transnational enforcement of anti-corruption lawsConclusionI International, regional, and domestic sources of anti-corruption law: eclecticism or convergence?The Americanization of international anti-corruption: The influence of the FCPA on the OAS and OECD conventionsNegotiating global anti-corruption standardsChronicle of a death foretold: US failure to internationalize the FCPA in the 1970sFighting the good Jight in the 1990sThe OAS conventionThe OECD ConventionAmericanizing global anti-corruption after the conventionsComparing the texts: conventions expanding upon and reforming the FCPAThe OAS and OECD conventions as means of expanding the FCPA’s jurisdictional reachThe OAS and OECD conventions as applied to other states: leaving room for creativity, cooperation ... and uncertaintyImplementation and enforcement: the FCPA and its laggardsFCPA enforcement actions surge post-1998 strengthened by DOJguidanceUS enforcement efforts lead the way for the OAS and OECD enforcement lagResentment of US extraterritorial enforcement spurs implementation of FCPA-like criminal lawsConclusionToward an interest group theory of foreign anti-corruption lawsWhy do we care about foreign corruption?A history of the enactment and enforcement of foreign anti-corruption lawsForeign policy and the genesis of the FCPABusiness interests interveneMultilateral treaties and ensuing domestic enactmentsContending theories of foreign anti-corruption lawsRights-based accountsRealist accountsInstitutional accountsOur interest-group modelHegemony to k-group theoryTwo-level gamesPutting it all togetherCase analysis of our interest group theoryConclusionNever waste a crisis: Anti-corruption reforms in South AmericaThe corruption scandalsPolitics and legal reform during crisisThe regulatory sine curve in financial regulationThe regulatory sine curve in anti-corruption lawSouth American countries’ responses to corruption crisesArgentinaPeruBrazilColombiaChileNon-OECD convention countriesConclusion and challenges aheadThe relevance of moral arguments against foreign bribery: Israel as a case studyThe OECD Convention and its implementation mechanismsWhy do people obey the law?Israel and the OECDThe Israeli discourse regarding bribery of foreign public officialsConclusionFrance’s new approach towards extraterritoriality in anti-corruption law: Paving the way for a protective principle in economic matters?Article 21 of the Loi Sapin II: a distinctive conception of the protective principleApplying the protective principle to economic matters at largeThe questionable claim of horizontal alignment with the FCPA and UKBACriminal jurisdiction based on ‘economic’ or ‘business’ activities in the territory: A valid basis in international law?A dubious basis in customary lawThe solid basis provided by multilateral instruments against corruptionAddressing jurisdictional overlaps: policy' and legal solutions in the fight against transnational corruptionUnilateral initiatives: a plea for jurisdictional self-restraintMultilateral solutions: articulating States’ responsibilitiesChinese multinational corporations’ obligations in the global anti-corruption arena Levelling the playing field in AfricaChina’s presence in Africa and rent-seekingChina’s unconditional policy compromises Africa’s efforts in combating corruptionRent-seekingThe main-theme of culture: guanxi vis-a-vis networkGuanxi with unique Chinese characteristicsIs gmnxi-oriented culture inherently wrong?Pluralistic attitudes towards bribery—the cultural tolerance of bribery in ChinaA classical preposition: the Chinese guanxi vis-à-vis the western networkThe dialectical analysis of guanxi in comparison: the institutional voidEmpirical evidenceEnhance the institutional buildingA pseudo-proposition: the argument of an unlevelled playing fieldEmpirical evidenceAn invalidated pseudo-propositionThe extraterritorial effect of China’s anti-bribery lawThe Eighth Amendment to Article 164 of the Chinese Criminal Law (CCL2011)The Ninth Amendment to the Chinese criminal law (CCL 2015)The impact on MNCs’ global compliance strategiesWould China’s anti-corruption campaign have positive spill over effects in Africa?Beijing model’s ideological inspirationAnti-corruption in China’s national interestsSustainable strategies: catalyze the change through complianceMake gift-giving policies jurisdiction specificThe shifting landscape of localized compliance risksThe feasibility to foster a compliance culture against briberyMake the global compliance regimes compatibleConclusionII Traditional methods reconsideredThe failure of transnational anti-corruption law: Civil law strategies reconsideredThe international anti-corruption standardPractical limits to making civil law workPossible avenues for activating civil law strategiesStrengthening collective actionBackground and EU initiativesThe Musterfeststellungsklage in German lawStrengthening corporate complianceConclusionThe proliferation of international anti-corruption initiatives, standards, and guidelines: Classification, benefits and shortcomings, future prospectsClassification of anti-corruption standardsPrinciple-based standardsCertification standardsReporting standardsProcess standardsDiscussion: benefits and shortcomings of anti-corruption standardsVarietyMulti-stakeholder approachGlobal impactPerceived value vs. hard lawFlexibilityVoluntary adoptionAssurance and enforcement mechanismsConclusion: moving forward with anti-corruption standards effectivenessIn the ocean of anti-corruption compliance standards and guidelines: Time for codification?Distinctive features of anti-corruption compliance regulationMain categories of anti-corruption compliance standards and guidelinesStructure and content of anti-corruption compliance standards and guidelinesBenchmarking reportsConclusionState capture through corruption: How can human rights help?The fight against corruption and the international system for protecting human rights: a slow awakeningWeak consensus and fragmented international law in the fight against corruptionThe slow awakening of the United Nations and the Inter-American human rights’ protection systemsState capture through corruption: developing the conceptExisting concepts and definitions of grand conniption, kleptocracy, and state capture through corruptionCase studiesCase 1: Corruption and forced disappearances in Coahuila, MexicoCase 2: Nicaragua, the concession awarded to Wang Jing‘ for several megaprojectsCase 3: Corruption and the diverting of funds in the Linen case in GuatemalaHow these examples contribute to the notion of state capture through corruptionThe state captureThe purpose of corruptionSuggesting a new definition of state capture through corruptionThe role of inter-American litigation in the fight against state capture through corruptionThe corruption loopholeInter-American case law on corruptionThe duty to prevent human rights violations in contexts of corruptionProposal for a duty to prevent corruptionConclusionImpact of corruption on the implementation of international law: Ail international criminal law perspectiveImpact of grand corruption on fundamental rights and developmentMalabo protocol: an insufficient response to grand corruptionThe Rome Statute: a lacklustre approach to the problem of corruptionProblematic rules of the International Criminal Court to deal with the offense of corruptionInternational Criminal Court’s experience to deal with the offense of corruptly influencing witnesses (situation in Kenya)ConclusionIII The new frontiers of complianceWhistleblower protection: The next frontier in the transnationalization of anti-corruption lawUnderreporting of corruption offences by whistleblowersPoor organizational culture as a barrier to reporting corruptionThe reality of retaliation against whistleblowers reporting corruptionLegal uncertainty over protections for disclosure and remedies for retaliationA dissonant international legal framework for whistleblower protectionInternational anti-corruption instrumentsG20 action on whistleblower protectionEurope: leading the legal revolutionDisparities in national whistleblower protection lawsA panoply of legal forms and definitionsFocus on motive rather than informationReporting channels and criteriaInadequate protections and remediesThe distorting effect of financial incentivesAbsence of oversight authorities or monitoring and evaluation mechanismsAn uncertain and contradictory legal landscape for disclosureConclusion: towards transnationalization of whistleblower protection lawThe contract as anti-corruption platform for the global corporate sectorBusiness corruption and corresponding legal regulationCorruption pervades the private sectorInternational anti-corruption enforcement through domestic legislation and international instrumentsAttacking corruption in the private sector through the corporate compliance functionContract law as anti-corruption mechanism to fight third party riskThe advent of anti-corruption contractual provisions as corporate due diligence toolsFormalizing anti-corruption contractual provisions with model clausesParties may harness broad powers through an expanded range of anti-corruption commitmentsRepresentations and warranties pertaining to anti-corruption complianceRights to conduct audits on a counterpartyAddressing infringement through termination, suspension, cooperation, and indemnification rightsRecommendations for harnessing contractual law to fight corruption in the corporate sectorHarmonizing anti-corruption compliance program operations with contractual provisions through structured risk managementEnhancing anti-corruption initiatives globally through expansive use of anti-corruption provisionsRecognizing the limitations of anti-corruption contractual provisions for corporate actorsEncouraging the usage of anti-corruption provisions through expanded domestic legislation and regulationConclusionLinear and non-linear modeling techniques in transnational corruption risk assessmentThe structure of linear indexesMeasurement, modeling, and metaphorNon-linear modeling alternativesTransnationalization of anti-corruption trainingsAnti-corruption trainings as a requirement derived from hard law and soft lawDomestic approachesInternational business standards and ‘friends’ from civil societyTransnational anti-corruption training requirementsRisk assessmentPeriodicityAudienceTraining content and approachTraining formats: in-person vs. e-learningsTesting in anti-corruption educationMandatory trainings and incentivesAnti-corruption training recordsMonitoring and assessmentConclusionIV Anti-corruption considerations in international dispute resolutionMethodologies for proving corruption in arbitration: Uses and limitations of red flagsRed flags—origins and evolutionThe US FCPA and the OECD ConventionAnti-bribery compliance programs and third panicsRed flagsRole of red flags in both compliance and enforcement liability analysesThe role of red flags in preventionRed flags in the enforcement contextUse of red flags in civil disputes, particularly in arbitrationPreliminary issuesStandard and onus of proofDefinitional issuesTypologiesCONTRACTS FOR CORRUPTIONCONTRACTS RESULTING FROM CORRUPTIONINVESTOR-STATE CLAIMSCase examplesContracts for corruptionICC CASE 13914 (2008)ICC CASE NO. 12290 (2005)Contracts allegedly procured by corruption: Niko ResourcesOther investor-state casesMETAL-TECH V. UZBEKISTAN SPENTEX V. UZBEKISTANFurther observations and recommended approachThe World Bank Group in international dispute resolution of fraud and corruption: Examining the practice and jurisprudence of the Sanctions Board and ICSID Arbitral TribunalsJurisdiction and competenceSanctions systemICSID tribunalsPractice and jurisprudence of the Sanctions Board and ICSID arbitral tribunalsStandard of proof; evidenceBurden of proofRed flags of fraud and corruptionLessons learnedAnti-corruption conventions in international investment arbitrationAnti-corruption conventions in international investment arbitrationProviding tools for arbitrators to address corruption allegationsAnti-corruption conventions in international investment agreementsAnti-corruption conventions in IIAsFulfilling international anti-corruption commitmentConclusionsV Challenges in the transnational enforcement of anti-corruption laws The global diffusion of DPAs: The not so functional remaking of the rules against business corruptionDPAs in a nutshell: focusing on the non-recognition of liabilityThe growth of DPAs in the United StatesThe international proliferation of DPAs and other instrumentsThe functionalist and rational learning explanations for the proliferation of DPAsSummary and critical review of the arguments in favour of DPAsThe prevention of systemic risk and the protection of third parties against the corporate death penaltyThe levelling/ the playing/field argumentEffectiveness, efficiency, and increased flexibility due to DPAs?The alleged effect of DPAs on the self-disclosure of crimesCritical review of the main arguments against DPAsDP As undermine the rule of law and may hinder the independence of prosecutorsDPAs, their lack of consistency for criminal law enforcement, and their threat to the level of public trustDPAs as a threat to the deterrent effect of criminal lawAlternative approaches of political science and sociologyCoercion, the state, and extraterritorial enforcement of the FCPABusiness power and political economy analysisBusiness power and DP As: the Canadian exampleBusiness power and DPAs: the United Kingdom exampleInstitutional isomorphismNormative isomorphism and the role ofepistemic communities in the proliferation ofDPAsMimetic isomorphism and the role of uncertainty for the spread of DPAsConclusionThe impact of blocking statutes on the enforcement of anti-corruption lawsAn overview of blocking statutes in France, Switzerland, and ChinaBlocking statutes against effective transnational anticorruption enforcementConclusionThe search for synergies: The utopian ideal of cooperation between international anti-corruption mechanismsThe first dimension: differences in membershipThe second dimension: differences in mandatesDifferences in the topics that are currently tinder review in each mechanismDifferences in the timing of the rounds/phase of analysisDifferences in the process of analysisDifferences in the levels of transparency-confidentiality of the information obtained by the mechanismDifferences in the participation of civil society throughout the review processDifferences in the preparation ofglobal/hemispheric reports and other activities within the mechanismConclusionIn search of a tailored approach to anti-corruption sanctions in the international development context: Financial remedies by the multilateral development banksMDB-specific characteristics influencing the evolution of the MDBs’ sanctions systemsThe MDBs’ range of sanctionsThe MDBs’ sanctions evolution and practiceUse of restitution and financial remediesAlternative basis for financial remediesAn anti-corruption ‘remedial clause’ in the MDBs sanctions contextConclusionIndex
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