The global anti-bribery collaboration in evolution. A systematic analysis of historical puzzles and key contemporary questions
| Pages | 264-294 |
| Published date | 06 July 2015 |
| Date | 06 July 2015 |
| DOI | https://doi.org/10.1108/JFC-10-2013-0057 |
| Author | Lianlian Liu |
| Subject Matter | Accounting & Finance,Financial risk/company failure,Financial crime |
The global anti-bribery
collaboration in evolution
A systematic analysis of historical puzzles
and key contemporary questions
Lianlian Liu
The Chinese University of Hong Kong, Hong Kong, China
Abstract
Purpose – The purposes of this paper are to organize historical, solved questions and recent, unsolved
questions in a coherent, progressive way; explore the key question to be answered under this systematic
framework; and reect on an alternative analytical perspective to the current
“problem-solving-oriented” approach. Transnational bribery regulation, with the Organization for
Economic Co-operation and Development (OECD) Anti-Bribery Convention as the central governing
legal instrument, is on the top agenda of international governance. However, its complex nature makes
theoretical viewpoints on this topic rather fragmented. This fragmentation is used to help understand
the wisdom of the Foreign Corrupt Practices Act (FCPA) approach in the early years. However, as the
FCPA approach was internationalized and evolves to its current phase, in which individual inquiries
become path-dependent and interdependent, the fragmentation causes more confusion than makes
contribution.
Design/methodology/approach – Sections 2 and 3 retrospect the historical trajectory of academic
research on the global regulation of transnational bribery, systemizes relevant theoretical insights and
illustrates how people’s understandings of the wisdom of the FCPA approach in early years affect their
evaluations of the effect of the OECD Anti-Bribery Convention in the contemporary era. Given that, at
present, the most popular viewpoint is that the Convention is “ineffective”, Section 4 systemizes the
diverse causal attributions of the “problem” in current academic literature, sorts out the roots causes
and points out the key question for the next step forward under the version of the
“problem-solving-oriented” analysis. Section 5 has a reection on the inherent limitation of a
“problem-solving-oriented” approach for our understanding of the effects of the Convention.
Findings – Under the version of a “problem-solving-oriented” approach, the key question to be solved
is how to establish a mechanism to cope with the surreptitious nature of transnational bribery
and the self-sacriced nature of the FCPA-style approach simultaneously. The popular
“problem-solving-oriented” approach has an inherent limitation to create new knowledge on the
multilateral anti-bribery collaboration. A reality-based, historical analytical perspective is a good
alternative to it.
Originality/value – The paper presents a personal, original organization of the conventional
theoretical insights to the operation of the global anti-bribery collaboration and the underlying logics of
these viewpoints. The paper also presents the author’s personal analysis of the “technical omission” and
“inherent limitation” of a problem-solving-oriented approach to analyze the performance of the global
anti-bribery collaboration, and the power of a historical analytical perspective as an alternative.
Keywords A “problem-solving-oriented” approach, A historical perspective, A systematic review,
Multilateral anti-bribery collaboration, The effects of the OECD anti-bribery convention,
The wisdom of the FCPA approach
Paper type General review
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JFC
22,3
264
Journalof Financial Crime
Vol.22 No. 3, 2015
pp.264-294
©Emerald Group Publishing Limited
1359-0790
DOI 10.1108/JFC-10-2013-0057
1. Introduction
Transnational bribery refers to acts of bribes paid by multinational corporations
(hereinafter “TNCs”)[1] to foreign ofcials in business transactions[2]. As a by-product
of international trade, the phenomenon is, by no means, a recent existence. However,
only very recently has it been taken as a criminal offence, marked by:
• the US’s enactment of the Foreign Corrupt Practices Act (1977) (hereinafter “the
FCPA”) in 1977, which prohibits US nationals from paying bribes to foreign
ofcials in overseas business transactions; and
• the 1997 Organization for Economic Co-operation and Development (OECD)
Anti-Bribery Convention (OECD, 1997), which popularized the FCPA approach to
the whole world of industrialized countries and an increasing number of
peripheral countries[3].
Transnational bribery regulation, with the OECD Anti-Bribery Convention as the
central governing legal instrument, is currently on the top agenda of international
governance of public affairs, and also one of the most popular topics in anti-corruption
analysis.
1.1 The variety of puzzlements on the global anti-bribery collaboration
The creation and the internationalization of the FCPA approach raise much puzzlement
for academic research:
• In the early years, as a revolutionary anti-corruption initiative of the USA, the
wisdom of the FCPA attracted concerns. As transnational bribery inherits many
characteristics of domestic corruption, previous works explore the wisdom of the
FCPA by answering conventional anti-corruption questions like the nature of
transnational bribery (Waldman, 1974;Nichols, 1997, pp. 310-332; Doig, 1998;
Nesbit, 1998, pp. 1277-1295; Ackerman, 1999;Salbu, 2000, pp. 658-670; Salbu,
2001;Holmes, 2009;Dion, 2010), its social impacts (Cockcroft, 1996;Nichols, 1997,
pp. 333-349; Williams and Beare, 1999, pp. 115-132; Zeldin and di Florio, 2000;
Salbu, 2000, pp. 658-670; Nichols, 1999, pp. 270-278; Vega, 2010;Johnson, 2010,
pp. 94-97) and possible countermeasures such as civil actions (Burger and
Holland, 2006;Young, 2009;Vega, 2010). Out of the general belief that corruption
originates in and affects a variety of aspects of our social life (e.g. economic,
political and cultural aspects), individual inquiries to these questions could be
quite divergent.
• The FCPA approach is different from traditional anti-corruption experience in
terms of its regulatory means. In particular, the reasonability of its two
anti-conventional characteristics – supple-side control (Bertok, 1999, pp. 279-303;
Salbu, 2000, pp. 671-677; Sung, 2005;Pieth, 2007, pp. 20-26; Holmes, 2009,
pp. 384-387; Baughn et al., 2010) and extraterritorial application of criminal laws
(Chaikin, 1997;Nichols, 2000, pp. 650-654; Kaczmarek and Newman, 2011;
Magnuson, 2013, pp. 394-399) need justications.
• In the era of the USA’s unilateral enforcement of the FCPA, the self-sacriced
nature of such sort of approach in terms of the USA’s export interests in overseas
markets was realized by corporations and scholars (USDOC, 1980, pp. 10-11;
Kaikati and Label, 1980;USGAO, 1981;Kim, 1981;Beck and Maher, 1989;Hall,
265
Global
anti-bribery
collaboration
in evolution
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