II: Traditional methods reconsidered
Transnational law is dynamic and recursive, interacting with and reexamining itself in a process of constant change. This part of the book engages in that process. Each of the five chapters examines a given process, discusses its weaknesses, and suggests changes to the global anti-corruption regime.
The first chapter in this part, by Thomas Kruessmann, observes that despite frequent reference to the role that they could play, civil actions account for very little of the global anti-corruption regime.[1] Kruessmann argues that the paucity of civil law actions stems from a lack of imagination on the part of those who contribute to the creation of the regime. The traditional means of imposing liability - through breach of contract or infliction of a tort - are too uncertain and expensive when used to litigate issues of corruption. Kruessmann suggests looking elsewhere, and offers collective redress, as in consumer liability actions, and personal accountability, as imposed on corporate executives by supervisory boards, as examples of reimagined and more effective civil actions.
The second chapter in this part examines the effectiveness of voluntary standards and guidelines. These privately developed tools are often called ‘soft law’ and constitute an important component of transnational regimes. Vera Cherepanova begins by describing the emergence of myriad standards, and then usefully creates a four-part typology' of existing standards. Cherepanova examines the effectiveness of standards in controlling corruption and concludes that in the absence of accountability they have little effect. Cherepanova does not, however, argue that standards should be discarded; instead, she suggests that scholars and practitioners continue to study them so as to improve their effectiveness.
The third chapter in this part also examines standards and guidelines. Eduard Ivanov reports on an empirical study he conducted, comparing the ‘ocean’ of standards and guidelines within the global anti-corruption regime to the relatively straightforward guidelines promulgated to curtail international money laundering and the financing of terrorists. Ivanov suggests that the
Transnationalization of anti-corruption 21 multiplicity of resources, models, and guidance may work to the detriment of the goals of the anti-corruption regime, by leaving individual organizations confused and uncertain. He suggests standardization and codification of standards and guidelines. Jimena Reyes, in the fourth chapter in this part, suggests a reconceptualization of the international anti-corruption instruments in Latin America.[2] Reyes notes that corruption has severely undermined the democratic revolutions throughout Latin America. She finds notions of grand corruption and theories of state capture to be too limited, in that they do not reflect the means through which corruption has undermined these states, and suggests new definitions. She also expresses frustration at the lack of connectivity between human rights regimes and anticorruption regimes.
The final chapter in this part applies a similar analysis to international criminal law. Vishal Sharma notes the many harms inflicted on society by large-scale corruption. In light of these harms, Sharma criticizes the failure of international criminal law to consider large-scale corruption as an international crime. He also notes that corruption undermines the prosecution of other crimes. Sharma suggests that corruption be considered an international crime prosecutable under the Statute of Rome, and proposes changes to the Statute of Rome to inoculate it against corruption. Sharma’s chapter, along with the chapter contributed by Reyes, suggests a relatively unexplored process in the creation of transnational law. Sharma and Reyes suggest dynamic interaction not just within the context of a single transnational regime, but also between regimes. Their proposals demonstrate that this kind of interaction could enhance each of the interacting regimes.
