Hostname: page-component-78c5997874-fbnjt Total loading time: 0 Render date: 2024-11-15T01:53:58.610Z Has data issue: false hasContentIssue false
  • English
  • Français

Global Anti-Corruption Regimes: Why law schools may want to take a multi-jurisdictional approach

Published online by Cambridge University Press:  06 March 2019

D. Alison von Rosenvinge

Extract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

In the last fifteen years, the legal fight against bribery and corruption has evolved from the solitary effort of the United States with its Foreign Corrupt Practices Act (FCPA), 15 U.S.C. §§ 78 et seq., to a global legal endeavor. During the same period of time, corporations have become increasingly engaged in transnational deals that require them to understand their obligations under a web of anti-corruption regulations. The stakes for businesses are high: fines can range in the tens of millions of dollars and individuals found guilty of corruption may be imprisoned for life.

Type
Section 1: ‘Same Ol’, Same Ol'?' Reflecting on Curricular Reform
Information
German Law Journal , Volume 10 , Issue 6-7: Following the Call of the Wild: The Promises and Perils of Transnationalizing Legal Education , July 2009 , pp. 785 - 802
Copyright
Copyright © 2009 by German Law Journal GbR 

References

1 In April 2007, Baker Hughes disgorged profits of approximately USD 33 million and paid a criminal fine of USD 11 million. United States Securities and Exchange Commission Press Release: SEC Charges Baker Hughes with Foreign Bribery and with Violating 2001 Cease-and-Desist Order available at: http://www.sec.gov/news/press/2007/2007-77.htm (last visited Apr. 29, 2009). In 2009, Kang Huijun, former deputy of Shanghai's Pudong New Area District, was sentenced to life imprisonment for taking bribes. Xinhua News Agency, February 3, 2009 available at: http://www.china.org.cn/china/news/2009-02/03/content_17218040.htm (last visited Apr. 29, 2009).Google Scholar

2 See generally, An Educational Continuum, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap, American Bar Association Section of Legal Education and Admission to the Bar (the MacCrate Report), July 1992 available at: http://www.abanet.org/legaled/publications/onlinepubs/maccrate.html #Introduction (last visited Apr. 29, 2009).Google Scholar

3 Friedman, Stephen J., A Practical Manifesto for Legal Education: Law schools are professional schools, so let's teach these students something, Legal Times, Sept. 28, 2005 available at: http://www.law.com/jsp/article.jsp?id=1127811912465 (last visited Apr. 29, 2009) (Little has been done to help “those new lawyers whose work is transactional, or who focus on advising businesses or individuals and families, or who specialize in real estate or international transactions.”) (last visited Apr. 29, 2009).Google Scholar

4 The MacCrate Report at Introduction (“It has long been apparent that American law schools cannot reasonably be expected to shoulder the task of converting even very able students into full-fledged lawyers licensed to handle legal matters. Thus, a gap develops between the expectation and the reality, resulting in complaints and recriminations from legal educators and practicing lawyers. The lament of the practicing bar is a steady refrain: ‘They can't draft a contract, they can't write, they've never seen a summons, the professors have never been inside a courtroom.’ Law schools offer the traditional responses: ‘We teach them how to think, we're not trade schools, we're centers of scholarship and learning, practice is best taught by practitioners.'”) 1992 available at: http://www.abanet.org/legaled/publications/onlinepubs/maccrate.html#Introduction (last visited Apr. 29, 2009).Google Scholar

5 Friedman, Stephen J., A Practical Manifesto for Legal Education. available at: http://www.law.com/jsp/article.jsp?id=1127811912465 (last visited Apr. 29, 2009).Google Scholar

6 See generally, Lay-Person's Guide to FCPA, Foreign Corrupt Practices Act Bribery Provisions available at: www.usdoj.gov/criminal/fraud/docs/dojdocb.html (last visited Apr. 29, 2009) (“Following the passage of the FCPA, the Congress became concerned that American companies were operating at a disadvantage compared to foreign companies who routinely paid bribes and, in some countries, were permitted to deduct the cost of such bribes as business expenses on their taxes.”); Macleans A. Geo-JaJa and Garth L. Mangum, The Foreign Corrupt Practices Act's Consequences for U.S. Trade: The Nigerian Example, Africa Economic Analysis, at p. 3 available at: http://www.afbis.com/analysis/corruption.htm (last visited Apr. 29, 2009) (“the FCPA has received support as well as criticism for putting American firms at a competitive disadvantage in world business where the bribe is an accepted facilitator”).Google Scholar

7 In the early 1990s, there were a number of articles arguing that U.S. companies were disadvantaged in international business because they were unable to bribe foreign officials while their competitors did so. See generally, Peter Semler, U.S. Companies Find Corruption a Competitor, Journal of Commerce (J. Com.) 8A (Apr. 18, 1994) (U.S. companies are increasingly losing business abroad as foreign companies unhindered by U.S. anticorruption laws win contracts through bribes and other practices); Lewis, E. Grey, Continued Official U.S. Pressure Called Key to Winning Kuwait Reconstruction Contracts, 9 International Trade Reporter (Int'l Trade Rep.) 472, 472 (Mar. 27, 1991) (Lewis [an attorney] asserted that a major obstacle to U.S. participation in Kuwait's recovery is the constraint placed on doing business by the U.S. Foreign Corrupt Practices Act, which major U.S. competitors do not have to follow.); Muffler, Stephen, Proposing a Treaty on the Prevention of International Corrupt Payments: Cloning the Foreign Corrupt Practices Act is not the Answer, 1 International Law Students Association Journal of International and Comparative Law (ILSA J. Int'l & Comp. L.) 3 (1995).Google Scholar

8 See generally, Danforth Newcomb and Philip Urofsky, Recent Trends and Patterns in FCPA Enforcement (as of February 13, 2008) available at: http://www.shearman.com/files/upload/LT-021308-Recent-Trends-and-Patterns-in-FCPA-Enforcement-February-2008.pdf (last visited Apr. 29, 2009); Osterland, Andrew, U.S. targeting execs in bribe probes: Feds’ push to investigate companies for corrupt practices overseasGoogle Scholar

9 In this paper, “regional organizations” are defined as multi-state organizations whose member states are limited to states within a certain geographical area and “international organizations” are multi-state organizations whose membership is not limited by geographic region.Google Scholar

10 See Posados, Alejandro, Combating Corruption Under International Law, 10 Duke Journal of Comparative and International Law (Duke J. Comp. & Int'l L). 345, 348–49 (2000); Thomas R. Snider and Won Kidane, Combating Corruption Through International Law in Africa: A Comparative Analysis, 40 Cornell International Law Journal (Cornell Int'l L.J.) 691, 696–97 (2007).Google Scholar

11 United States House Report (H.R. Report) No. 95–114, 1–2 (1977).Google Scholar

12 Posados, , supra note 10, 355.Google Scholar

13 Defined as any individual who is a citizen, national or resident of the United States, or any corporation, partnership, association, joint-stock company, business trust, unincorporated organization or sole proprietorship which has its principal place of business in the United States or which is organized under the laws of a state, territory, possession or commonwealth of the United States.Google Scholar

14 Defined as a corporation that has issued securities that has been registered in the United States or who is required to file periodic reports with the SEC.Google Scholar

15 See generally, Lay-Person's Guide to FCPA, supra, note 6.Google Scholar

16 The Convention on Combating Bribery of Foreign Public Officials in International Business Transactions available at: http://www.oecd.org/dataoecd/4/18/38028044.pdf (last visited Apr. 29, 2009).Google Scholar

17 Christopher F. Corr and Judd Lawler, Damned if You Do, Damned if You Don't? The OECD Convention and the Globalization of Anti-bribery Measures, 32 Vanderbilt Journal of Transnational Law (Vand. J. Transnat'l L.) 1249, 1303–04 (Nov. 1999).Google Scholar

18 The OECD Convention on Combating Bribery, Art. 1.Google Scholar

19 Commentaries on the Convention Combating Bribery of Foreign Public Officials in International Business Transactions, United States Senate Treaty Document (S. Treaty) No. 105–43, 22 (Nov. 1997).Google Scholar

20 The OECD Convention on Combating Bribery (note 18), Art. 2.Google Scholar

21 The OECD Convention on Combating Bribery (note 18), Art. 3(1).Google Scholar

22 The OECD Convention on Combating Bribery (note 18), Art. 4(3).Google Scholar

23 The OECD Convention on Combating Bribery (note 18), Art. 5.Google Scholar

24 The OECD Convention on Combating Bribery (note 18), Art. 6.Google Scholar

25 The OECD Convention on Combating Bribery (note 18), Arts. 7–8.Google Scholar

26 The OECD Convention on Combating Bribery (note 18), Art. 9(1).Google Scholar

27 The OECD Convention on Combating Bribery (note 18), Art. 10(1).Google Scholar

28 The OECD Convention on Combating Bribery (note 18), Art. 11.Google Scholar

29 The OECD Convention on Combating Bribery (note 18), Art. 12. See also The Annual Report of the OECD Working Group on Bribery available at: http://www.oecd.org/dataoecd/21/15/40896091.pdf (last visited on Apr. 29, 2009).Google Scholar

30 See, e.g., OECD Working Group on Bribery, 8–9 (Annual Report 2007).Google Scholar

31 Id., 9.Google Scholar

32 United Nations Convention Against Corruption available at: http://www.unodc.org/documents/treaties/UNCAC/Publications/Convention/08-50026_E.pdf (last visited Apr. 29, 2009).Google Scholar

33 Id., iii.Google Scholar

34 United Nations Convention Against Corruption (note 32), Ch. I, Arts. 1–4.Google Scholar

35 United Nations Convention Against Corruption (note 32), Ch. II, Art. 5.Google Scholar

36 United Nations Convention Against Corruption (note 32), Ch. II, Art. 6.Google Scholar

37 United Nations Convention Against Corruption (note 32), Ch. II, Arts. 7–11.Google Scholar

38 United Nations Convention Against Corruption (note 32), Ch. II, Art. 12.Google Scholar

39 United Nations Convention Against Corruption (note 32), Ch. III, Arts. 15–16.Google Scholar

40 United Nations Convention Against Corruption (note 32), Ch. III, arts. 21–22.Google Scholar

41 United Nations Convention Against Corruption (note 32), Ch. IV, art. 43.Google Scholar

42 United Nations Convention Against Corruption (note 32), Ch. V.Google Scholar

43 United Nations Convention Against Corruption (note 32), Ch. VI.Google Scholar

44 United Nations Convention Against Corruption (note 32), Chs. VII and VIII.Google Scholar

45 For a review of individual state laws, see the report from the Working Group on Bribery in International Business Transactions available at: http://www.oecd.org/dataoecd/50/33/1827022.pdf (last visited Apr. 29, 2009).Google Scholar

46 The Inter-American Convention Against Corruption available at: http://www.oas.org/juridico/english/Treaties/b-58.html (last visited Apr. 29, 2009).Google Scholar

47 Low, Lucinda A., The Inter-American Convention Against Corruption: A Comparison with the United States Foreign Corrupt Practices Act, 38 Virginia Journal of International Law (Va. J. Int'l L.) 243, 246 (Spring 1998).Google Scholar

48 Inter-American Convention Against Corruption, 29 March 1996, Art. II.Google Scholar

49 Id., Art. IV.Google Scholar

50 Inter-American Convention Against Corruption (note 48), Art. VIII.Google Scholar

51 Council of Europe Criminal Law Convention on Corruption available at: http://conventions.coe.int/Treaty/EN/Treaties/Html/173.htm (last visited Apr. 29, 2009) and Council of Europe Civil Law Convention on Corruption available at: http://conventions.coe.int/Treaty/en/Treaties/Html/174.htm (last visited Apr. 29, 2009).Google Scholar

52 The CoE Criminal Convention defines “active bribery” as “the promising, offering or giving, directly or indirectly, of any undue advantage to any persons who direct or work for, in any capacity, private sector entities, for themselves or for anyone else, for them to act, or refrain from acting.” See Council of Europe Criminal Law Convention on Corruption, Ch. II, Arts. 2 (public officials) and 7 (private sector employees). “Passive bribery” is “the request or receipt” by a person “directly or indirectly, of any undue advantage, for himself or herself or for anyone else, or the acceptance of an offer or promise of such an advantage, to act or refrain from acting. See Council of Europe Criminal Law Convention on Corruption, Ch. II, Arts. 3 (public officials) and 8 (private sector employees).Google Scholar

53 Council of Europe Criminal Law Convention on Corruption, Ch. II, Arts. 2–11.Google Scholar

54 Id., Ch. II, Arts. 12–14.Google Scholar

55 Council of Europe Criminal Law Convention on Corruption (note 53), Ch. II, Arts. 21–23 and Ch. IV, Arts. 25–31.Google Scholar

56 Council of Europe Criminal Law Convention on Corruption (note 53), Ch. III, Art. 24.Google Scholar

57 Council of Europe Civil Law Convention on Corruption, 27 January 1999, Ch. I, Art. 2.Google Scholar

58 Id., Ch. I, Arts. 3–4. See also, Timothy W. Schmidt, Sweetening the Deal: Strengthening Transnational Bribery Laws Through Standard International Corporate Auditing Guidelines, 93 Minnesota Law Review (Minn. L. Rev.) 1120, 1128 (Feb. 2009) (“The private right of action is unlike anything found in either the OECD Convention or the FCPA.”).Google Scholar

59 Council of Europe Civil Law Convention on Corruption (note 57), Ch. II, Art. 13.Google Scholar

60 Council of Europe Civil Law Convention on Corruption (note 57), Ch. II, Art. 14.Google Scholar

61 African Union Convention on Preventing and Combating Corruption available at: http://www.africaunion.org/Official_documents/Treaties_%20Conventions_%20Protocols/Convention%20on%20Combating%20Corruption.pdf (last visited Apr. 29, 2009).Google Scholar

62 African Union Convention on Preventing and Combating Corruption, 2.Google Scholar

63 Id. arts. 4–24; see generally Thomas R. Snider and Won Kidane, Combating Corruption Through International Law in Africa: A Comparative Analysis, 40 Cornell Int'l L.J. 691 (Fall 2007).Google Scholar

64 African Union Convention on Preventing and Combating Corruption Arts. 7(1)-(2) and 5(4).Google Scholar

65 Id., Art. 11.Google Scholar

66 African Union Convention on Preventing and Combating Corruption (note 64), Art. 4(1).Google Scholar

67 African Union Convention on Preventing and Combating Corruption (note 64), Art. 4(1)(b).Google Scholar

68 African Union Convention on Preventing and Combating Corruption (note 64), Arts. 19–20 and 22.Google Scholar

69 African Union Convention on Preventing and Combating Corruption (note 64), Art. 22.Google Scholar

70 Research was based on the websites of the largest American law firms according to America's Largest 250 Law Firms available at: http://www.ilrg.com/nlj250 (last visited Apr. 29, 2009). See footnotes 70–80 and Holland & Knight available at: http://www.hklaw.com/id16048/mpgid4764/ (Foreign Corrupt Practices Act); WilmerHale available at: http://www.wilmerhale.com/litigation/foreign_corrupt_practices_act/ (Foreign Corrupt Practices Act); Weil Gotshal available at: http://www.weil.com/investigations-criminal-defense/ (Investigations and Criminal Defense, including FCPA); Kirkland & Ellis available at: http://www.kirkland.com/sitecontent.cfm? contentID=218&itemID=781 (FCPA and OECD); Morrison & Foerster available at: http://www.mofo.com/practice/practice/litigation/securitieslitigation/overview.html (anti-kickback case); McDermott Will & Emery available at http://www.mwe.com/index.cfm/fuseaction/sub_areas.detail/object_id/6a1bc687-06f0-4d6c-a129-a0c3ace93ed2/practice_area_id/0042458a-1ae2-437e-80eb-b2a7e69f60a5/long/1.cfm (FCPA investigations); Shearman & Sterling available at: http://www.shearman.com/practices/detail.aspx?practiceid=5b60d2c9-aaa0-4ae0-9369-ab8a283424e1 (FCPA and Global Anti-Corruption Compliance); Kirkpatrick & Lockhart Nicholson Graham available at: http://www.klgates.com/practices/ServiceDetail.aspx?service=53 (white collar crime/criminal defense, including FCPA); Hogan & Hartson available at: http://www.hhlaw.com/whitecollar/ (FCPA investigations); Reed Smith available at: http://www.reedsmith.com/practice_areas_&_industry_groups.cfm?widCall1=customWidgets.content_view_1&cit_id=23484&cta_tax_id=14172 (Global Regulatory Enforcement); O'Melveny & Myers available at: http://www.omm.com/whitecollar/ (white collar defense and corporate investigations including FCPA investigations); Akin Gump Strauss Hauer & Feld available at: http://www.akingump.com/services/ServiceDetail.aspx?service=296 (white collar criminal defense including FCPA defense in Afghanistan, Angola, Argentina, Austria, Azerbaijan, Bahrain, Belarus, Bosnia, Brazil, Cambodia, Canada, Chile, China, Colombia, Congo, Cote d'Ivoire, the Czech Republic, the Dominican Republic, Egypt, England, France, Germany, Ghana, Greece, India, Indonesia, Iran, Iraq, Japan, Kazakhstan, Kyrgyzstan, Libya, Liechtenstein, Mexico, Nigeria, Pakistan, Peru, the Philippines, Romania, Russia, Sao Tome and Principe, Saudi Arabia, South Africa, Switzerland, Tajikistan, Tanzania, Uganda, Ukraine, United Arab Emirates, Uzbekistan, Vietnam, Zaire and Zambia); Paul Hastings available at: http://www.paulhastings.com/PracticeAreaDetail.aspx?PracticeAreaId=32 (white collar, internal investigations and corporate governance); Foley and Lardner available at: http://www.foley.com/services/practice_detail.aspx?practiceid=403 (white collar defense); Fulbright & Jaworski available at http://www.fulbright.com/index.cfm?fuseaction=description.subdescription&site_id=427&id=539 (white collar crime: special skills, including FCPA representation) (last visited Apr. 20, 2009).Google Scholar

71 Baker, & McKenzie, , Trade & Commerce available at: http://www.bakernet.com/BakerNet/Practice/TradeCommerce/default.htm (last visited Apr. 16, 2009).Google Scholar

72 DLA Piper, Regulatory and Government Affairs available at: http://www.dlapiper.com/global/services/detail.aspx?service=74 (last visited Apr. 16, 2009).Google Scholar

73 Jones, Day, Government Regulation – Overview available at: http://www.jonesday.com/government_regulation/ (last visited Apr. 16, 2009).Google Scholar

74 White, & Case, , White Collar available at: http://www.whitecase.com/whitecollar/ (last visited Apr. 16, 2009).Google Scholar

75 Id. Google Scholar

76 Latham, & Watkins, , White Collar and Government Investigations available at: http://www.lw.com/practices.aspx?page=practicedetail&practice=55 (last visited Apr. 16, 2009).Google Scholar

77 Skadden, , Foreign Corrupt Practices Act Defense available at: http://skaddenpractices.skadden.com/fcpa/ (last visited Apr. 16, 2009).Google Scholar

78 Austin, Sidley, FCPA/Anti-Bribery available at: http://www.sidley.com/OurPractice/ServiceDetail.aspx?Service=258 (last visited Apr. 16, 2009).Google Scholar

79 Traurig, Greenberg, LLP, White Collar Criminal Defense available at: http://www.gtlaw.com/Experience/Practices/WhiteCollarCriminalDefense (last visited Apr. 16, 2009).Google Scholar

80 Brown, Mayer, Foreign Corrupt Practices Act available at http://www.mayerbrown.com/fcpa/ (last visited Apr. 16, 2009).Google Scholar

81 Lewis, Morgan, Foreign Corrupt Practices Act available at: http://www.morganlewis.com/index.cfm/fuseaction/practiceArea.detail/nodeID/a837b788-db43-44cf-9f9d-1a3937cdbbe8/practiceAreaID/D38AB295-21C1-4F61-A2CE-3725A3AD7EE8 (last visited Apr. 16, 2009).Google Scholar

82 See Shearman & Sterling LLP, Danforth Newcomb, Recent Trends and Patterns in FCPA Enforcement, available at: http://www.shearman.com/files/upload/FCPA_Trends.pdf (last visited Apr. 16, 2009); Proskauer Rose LLP, Matthew S. Queler, Wendy Wu and Bettina Chin, Foreign Corrupt Practices Act—Best Practices available at: http://www.proskauerguide.com/law_topics/27/IV (last visited Apr. 16, 2009).Google Scholar

83 See, supra, note 2 (“Thus, in contrast to virtually every other country, prospective lawyers in the United States commence their study of law in a professional school, after receiving an undergraduate degree. Students in other countries experience their first academic contact with the law as undergraduates, similar to students studying history, literature or philosophy. In other countries, the practicing bar assumes the major responsibility for accomplishing the transition of these students into practicing lawyers. Here, the bar's role is ill-defined.”).Google Scholar

84 See, supra, note 3 (“[A] student is far better off with a law school experience that comes as close as possible to an integrated combination of skills, knowledge and substantive law in one broad area—such as litigation or corporate transactions—than with a smorgasbord of unrelated courses, even if that student ends up practicing in an entirely different area.”).Google Scholar

85 See, supra, note 2 (Over the last century “the in-house clerkship form of legal education was increasingly incompatible with the needs of the emerging corporate law firms created to meet the complex needs of institutional clients.”).Google Scholar

86 See, supra, note 58.Google Scholar

87 See, supra, notes 38 and 40.Google Scholar

88 See, supra, note 64.Google Scholar

89 See, supra, note 24.Google Scholar

90 Low, supra, note 47, 265–74.Google Scholar