Between Impunity and Imperialism: The Regulation of Transnational Bribery

When people pay bribes to foreign public officials, how should the law respond? This question has been debated ever since the enactment of the U.S. Foreign Corrupt Practices Act of 1977, and some of the key arguments can be traced back to Cicero in the last years of the Roman Republic and Edmund Burke in late eighteenth-century England. In recent years, the U.S. and other members of the OECD have joined forces to make anti-bribery law one of the most prominent sources of liability for firms and individuals who operate across borders. The modern regime is premised on the idea that transnational bribery is a serious problem which invariably merits a vigorous legal response. The shape of that response can be summed up in the phrase "every little bit helps," which in practice means that: prohibitions on bribery should capture a broad range of conduct; enforcement should target as broad a range of actors as possible; sanctions should be as stiff as possible; and as many agencies as possible should be involved in the enforcement process. An important challenge to the OECD paradigm, labelled here the "anti-imperialist critique," accepts that transnational bribery is a serious problem but questions the conventional responses. This book uses a series of high-profile cases to illustrate key elements of transnational bribery law in action, and analyzes the law through the lenses of both the OECD paradigm and the anti-imperialist critique. It ultimately defends a distinctively inclusive and experimentalist approach to transnational bribery law.

About the Author :
Kevin E. Davis is Beller Family Professor of Business Law at New York University School of Law.

Review :
No other book on corruption that I know of zeroes in on the questions of how to combat foreign bribery in our times in such a thoughtful and comprehensive way. Not only should every prosecutor and international organization official engaged in the fight against transnational bribery read this book, but so should anyone who is interested in the policy issues or has had a brush with the current system from a private sector vantage point. Kevin Davis has written a truly unconventional book, he dares put in question the established U.S. and OECD standards against foreign bribery. He makes it clear that we are fighting foreign bribery in our own interest. All believers in the U.S. FCPA and in the OECD Convention on foreign bribery should read this book. Transnational bribery is a serious global problem, but as Kevin Davis argues, in his provocative and wide ranging critique, domestic and international law enforcement is often misdirected. Different societies have distinctive vulnerabilities that are not reflected in present-day enforcement priorities. A more effective response would look beyond prevention and deterrence to assess the costs and benefits of alternative strategies in diverse settings.