The global anti-corruption regime

As with so many other terms used in this book, the phrase ‘global anti-corruption regime’ lacks precise boundaries. The term exists for the convenience of those who study or practice in the realm of corruption control, who use it to designate an uncoordinated network of rules, laws, processes, and norms that operate to control corruption. That network clearly constitutes transnational law and is a natural object of study.

Many strands work together to create the network that constitutes the global anti-corruption regime. The regime constantly changes and grows,[1] but its basic components can be described.

Domestic activities

The domestic law of even’ country in the world criminalizes the bribery of its own officials, and most criminalize other forms of corruption as well. The law of the Falkland Islands, the southernmost polity in the world, has already been mentioned. Greenland, the northernmost polity, also criminalizes corruption. Russia, the easternmost country in the world, has enacted a plethora of laws and rules to control corruption, as has the westernmost, the United States. Even’ country or state-equivalent in between those four corners prohibits the corruption of its own officials.

A growing body of domestic legal systems also prohibits the bribery of foreign officials. Once, only the laws of the United States and Sweden prohibited transnational bribery. Now, the laws of virtually all of the major trading or investing countries have similar provisions. These laws vary in scope and jurisdictional reach; the most common iteration criminalizes the payment of bribes to foreign government officials for purposes that have to do with business.

Laws, however, are not the only domestic contribution to the global anticorruption regime. Many polities also contribute processes, administrative regulations, and training and norm creation. One of the most controversial processes, the conclusion of criminal investigations by deferred prosecution agreements or non-prosecution agreements, is the subject of a chapter in this book.- Administrative rules, on the other hand, tend to generate less debate. Both the federal government of the United States and the central government of China, for example, debar actors who act corruptly from further business with those

governments.[2] These are not small contributions to the global anti-corruption regime. In 2018, the United States government alone debarred 1,334 entities from procurement activities.

States also robustly educate and generate norms. Hong Kong’s Independent Commission Against Corruption stands out as a leader. The Independent Commission is empowered to investigate and prosecute allegations of corruption, but that is only one of the three prongs in its anti-corruption portfolio. The Commission also assists with regular audits of every agency in the Hong Kong government, as required by Hong Kong law, to not only account for spending and other decisions but also find weaknesses in the decision-making and reporting processes that might lend themselves to corruption. The third prong of the Commission’s charge is education. The Commission conducts educational seminars in secondary schools, and has produced an extensive catalogue of educational videos and publications that are available for public consumption.

  • [1] Gwendolyn Gordon observes that legal scholars tend to mistake culture as static when in reality it constantly changes. Gwendolyn Gordon, ‘Culture in Corporate Law* (2016) 39 Seattle UL Rev 353, 363. 2 Text to note 11. 3 Criminal Code 1954, § 17. 4 See V Shorokhov, ‘Anti-Corruption Policy in the Russian Federation’ (2017) 3 Eur J Natural History 22; Mark S Gaioni, ‘Federal Anticorruption Law in the State and Local Context: Defining the Scope of 18 USC Sec. 666’ (2012) 46 Colum JL & Soc Probs 207. 5 15 USC § 78dd-l (1978); Brottsbalken, SFS § 103 (1997). 6 See Nichols (n 33) 362-363 (reviewing laws of major trading and investing countries). 7 See Simon St-Georges and Denis Saint-Martin, ‘The Global Diffusion of DPAs: The Not So Functional Remaking of the Rules against Business Corruption’, ch 20. See also Mike Koehler, ‘Measuring the Impact of Non-Prosecution and Deferred Prosecution Agreements on Foreign Corrupt Practices Act Enforcement’ (2015) 49 UC Davis L Rev 497 (describing and discussing the controversial use of these agreements).
  • [2] Federal Acquisitions Regulations System—Causes for Debarment, 48 CFR § 9.406-2; Tong Xin-chao, ‘Chinese Procurement Law: Current Legal Frameworks and a Transition to the World Trade Organization’s Government Procurement Agreement’ (2003) 17 Temple Inti & Comp LJ 139, 163-164. 2 Annual Report of the Interagency Suspension and Debarment Committee to Congress (30 October 2019)7. 3 See Jon ST Quah, ‘Anti-Corruption Agencies in Four Asian Countries: A Comparative Analysis’ in Bidya Bowornwathana and Clay Wescott (eds), Comparative Governance Reform in Asia: Democracy, Corruption, and Government Trust (Emerald 2008) 85 (describing and comparing anti-corruption agencies). 4 ICAC, ‘Internal Audit Functions* accessed 1 June 2020. 5 ICAC, ‘Anti-Corruption Resources’ accessed 1 June 2020. 6 See Christopher R Drahozal and Richard W Naimark, Towards a Science of International Arbitration: Collected Empirical Research (Kluwer 2005) 59 (noting that 95% of transnational business contracts include an arbitration clause). 7 See Ilias Bantekas, Introduction to International Arbitration (CUP 2015) 16-20.
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