IMPLEMENTING GLOBAL ANTI-BRIBERY NORMS: FROM THE FOREIGN CORRUPT PRACTICES ACT TO THE OECD ANTI-BRIBERY CONVENTION TO THE U.N. CONVENTION AGAINST CORRUPTION Elizabeth K. Spahn* The thirty-fifth anniversary of the US Foreign Corrupt Practices Act ("FCPA")' is an opportune time to note the very successful globalization of values embodied in this remarkable statute. When the FCPA was first enacted in 1978, the United States stood alone in criminalizing bribes paid to foreign officials to obtain business abroad. By 2012, thirty-nine major economic powers have ratified the OECD Anti-Bribery Convention and 165 nations are states parties 3 to the United Nations Convention Against Corruption. I. EVOLVING NORMS INFLUENCING THE US FCPA Centuries of colonial experience by Western powers were based on the premise that global trade required bribing local "black tyrants" as the former British Governor General of Bengal, circa 1787, indelicately put it.s * © 2012. Professor of Law, New England Law I Boston. My thanks to Barbara Fredericks, Melanie Reed, Jessica Tillipman; research assistants Alaina Anderson, Louisa Gibbs, and Nikolaus Schuttauf; research librarians Barry Steams, Helen Litwick, and Brian Flaherty; and to Angela Cheung for assistance in the power point presentation. Errors are mine alone. I can be contacted at [email protected]. 1. Foreign Corrupt Practices Act of 1977, Pub. L. No. 95-213, 91 Stat. 1494 (1977) (codified as amended at 15 U.S.C. §§ 78dd-1 etseq.) [hereinafter FCPA]. 2. See Organisation for Economic Co-operation and Development, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Dec. 18, 1997, S. TREATY Doc. No. 105-43, 37 I.L.M. 1, available at http://www.oecd.orglinvestment/ briberyinintemationalbusiness/anti-briberyconvention/38028044.pdf [hereinafter Convention on Combating Bribery]; ORG. FOR EcoN. Co-OPERATION AND DEv., OECD CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL BUSINESS TRANSACrlONS: RATIFICATION STATUS AS OF APRIL 2012 (2012), available at http://www.oecd.org/dafl briberyinintemationalbusiness/anti-briberyconvention/40272933.pdf. 3. United Nations Convention Against Corruption: UNCAC Signature and Ratification Status, UNITED NATIONS OFF. ON DRUGS AND CRIME, http://www.unodc.org/unodc/en/ treaties/CAC/signatories.html (last visited Jan. 23, 2013). 4. See UNITED NATIONS OFF. ON DRUGS AND CRIME, UNITED NATIONS CONVENTION AGAINST CORRUPTION (2004), available at http://www.unodc.org/documents/treaties/ UNCAC/Publications/Convention/08-50026 E.pdf. 5. Padideh Ala'i, The Legacy of Geographical Morality and Colonialism: A Historical Assessment of the Current Crusade Against Corruption, 33 VAND. J. TRANSNAT'L L. 877, 884-85 (2000). Professor Ala'i's primary source of legal history analyzes the British House of Commons impeachment and British House of Lords trial of the Governor-General of Bengal, Warren Hastings. Id. at 833. The use of racial stereotyping was endemic by those
IMPLEMENTING GLOBAL ANTI-BRIBERY NORMS: FROM THE FOREIGN CORRUPT PRACTICES ACT TO THE OECD ANTI-BRIBERY CONVENTION TO THE U.N. CONVENTION AGAINST CORRUPTION
Jul 06, 2023
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