The 1998 OECD convention: An impetus for worldwide changes in attitudes toward corruption in business transactions

American Business Law Journal

Volumn 37, Issue 3, 2000, Pages 485-525

  George, Barbara Crutchfield ^a   Lacey, Kathleen A ^b   Birmele, Jutta ^b  

^a CALIFORNIA STATE UNIVERSITY   (United States)

^b CALIFORNIA STATE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0034420608     PISSN: 00027766     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1744-1714.2000.tb00276.x     Document Type: Article

References (268)

1. Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Dec. 17, 1997, 337 I.L.M. 8 〈http://www.oecd.org./daf/cmis/bribery/20nov23.htm〉 [hereinafter OECD Convention].
2. Foreign Corrupt Practices Act of 1977, Pub. L. No. 95-213, tit. I, 91 Stat. 1494 (codified at 15 U.S.C. §§ 78a, 78m, 78dd-1, 78dd-2, 78ff (amending scattered sections of the Securities Exchange Act of 1934, 15 U.S.C. §§ 77a-78kk (1976)).
3. International Anti-Bribery and Fair Competition Act of 1998, Pub. L. No. 105-366, 112 Stat. 3302 (codified at 15 U.S.C. §§ 78dd-1, 78dd-2 (1998)).
4. OECD, About OECD (visited Jun. 6, 1999) 〈http//www.oecd.org/about/general/index.htm〉.
5. 15 U.S.C. §§ 78a, 78m, 78dd-1, 78dd-2 (1977); Omnibus Trade and Competitiveness Act, Pub. L. No. 100-418, 102 Stat. 1107, 1415-25 (1988) [hereinafter Trade Act]; see Steven Salbu, Bribery in the Global Market: A Critical Analysis of the Foreign Corrupt Practices Act, 54 WASH. & LEE L. REV. 229 (1997); See also Beverley Earle, The United States Foreign Corrupt Practices Act and the OECD Anti-Bribery Recommendation: When Moral Persuasion Won't Work, Try the Money Argument, 14 DICK. J. INT'L L. 207, 235 (1996).
6. 15 U.S.C. §§ 78a, 78m, 78dd-1, 78dd-2 (1977); Omnibus Trade and Competitiveness Act, Pub. L. No. 100-418, 102 Stat. 1107, 1415-25 (1988) [hereinafter Trade Act]; see Steven Salbu, Bribery in the Global Market: A Critical Analysis of the Foreign Corrupt Practices Act, 54 WASH. & LEE L. REV. 229 (1997); See also Beverley Earle, The United States Foreign Corrupt Practices Act and the OECD Anti-Bribery Recommendation: When Moral Persuasion Won't Work, Try the Money Argument, 14 DICK. J. INT'L L. 207, 235 (1996).
7. 15 U.S.C. §§ 78a, 78m, 78dd-1, 78dd-2 (1977); Omnibus Trade and Competitiveness Act, Pub. L. No. 100-418, 102 Stat. 1107, 1415-25 (1988) [hereinafter Trade Act]; see Steven Salbu, Bribery in the Global Market: A Critical Analysis of the Foreign Corrupt Practices Act, 54 WASH. & LEE L. REV. 229 (1997); See also Beverley Earle, The United States Foreign Corrupt Practices Act and the OECD Anti-Bribery Recommendation: When Moral Persuasion Won't Work, Try the Money Argument, 14 DICK. J. INT'L L. 207, 235 (1996).
8. See OECD, supra note 4.
9. Id.
10. Id. The 29 members are Australia, Austria, Belgium, Canada, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, Netherlands, New Zealand, Norway, Poland, Portugal, Spain, Sweden, Switzerland, Turkey, the United Kingdom, and the United States.
11. See Transparency International, OECD Agreement Is Milestone against International Corruption, TI NEWSLETTER, Sept. 1997, at 7.
12. See OECD, supra note 4.
13. See id.
14. See id.
15. See Robert Hall, International Economic Co-operation after 1945, 33 HISTORYTODAY 12, 13 (Dec. 1983).
16. See id.
17. See id.at 14.
18. See id.
19. See ORGANIZATION FOR ECONOMIC COOPERATION AND DEVELOPMENT, OECD: HISTORY, AIMS, STRUCTURE 5 (1971). Some writers argue that the OECD is not the successor of the OEEC but rather its continuation with some constitutional changes, a wider range of purposes, and an extended membership. See Pieter N. Drost, OECD: Features and Functions, 26 THE AUSTRALIAN OUTLOOK 18 (1972).
20. See ORGANIZATION FOR ECONOMIC COOPERATION AND DEVELOPMENT, OECD: HISTORY, AIMS, STRUCTURE 5 (1971). Some writers argue that the OECD is not the successor of the OEEC but rather its continuation with some constitutional changes, a wider range of purposes, and an extended membership. See Pieter N. Drost, OECD: Features and Functions, 26 THE AUSTRALIAN OUTLOOK 18 (1972).
21. See Hall, supra note 13; Convention on Organisation for Economic Co-operation and Development, Dec. 14, 1960 (hereinafter 1960 OECD Convention).
22. Austria, Belgium, France, Denmark, the Federal Republic of Germany, Greece, Iceland, Ireland, Italy, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland,Turkey and the United Kingdom. OECD : HISTORY, AIMS, STRUCTURE, supra note 17, at 6, 41.
23. See OECD : HISTORY, AIMS, STRUCTURE, supra note 17, at 6. This number was not increased again until Japan accepted the invitation to join in 1964 and Finland accepted in 1969. The most recent countries to join the now 29 nation organization are Mexico and South Korea.
24. 1960 OECD Convention, supra note 18; see OECD : HISTORY, AIMS, STRUCTURE, supra note 17, at 41 .
25. 1960 OECD Convention, supra note 18; see OECD : HISTORY, AIMS, STRUCTURE, supra note 17, at 41 .
26. 1960 OECD Convention, supra note 18.
27. Recommendation of the Council on Combating Bribery in International Business Transactions, May 1994 (visited July 23, 1999) 〈http://www.oecd.org/daf/cmis/bribery/bribrecm.htm〉 [hereinafter Recommendation].
28. Recommendation of the OECD Council on the Tax Deductibility of Bribes to Foreign Officials, 1996 (visited June 6, 1999) 〈http://www.oecd.org//daf/nocorruption/tax98.htm〉 [hereinafter Tax Recommendation].
29. Revised Recommendation of the Council on Combating Bribery in International Business Transactions, 1997 (visited July 23, 1999) 〈http://www.oecd.org/daf/cmis/bribery/bribrecm.htm〉 [hereinafter Revised Recommendation].
30. OECD Convention, supra note 1.
31. See Barry James, Leaner, Meaner OECD Rides the Global Waves, INT'L. HERALD TRIB., May 26, 1999, at 4.
32. See OECD : HISTORY, AIMS, STRUCTURE, supra note 17, at 21 .
33. See id. at 22, 23.
34. See id. at 21.
35. See OECD, About OECD, supra note 4.
36. See id.
37. See OECD : HISTORY, AIMS, STRUCTURE, supra note 17, at 22.
38. See OECD, About OECD, supra note 4.
39. See id.
40. 15 U.S.C.A. § 78dd-1 (1988).
41. See OECD Convention, supra note 1.
42. See James, supra note 27.
43. See Glenn R. Simpson, Foreign Deals Rely on Bribes, U.S. Contends, WALL ST. J., Feb. 23, 1999, at A3.
44. It should be noted that there are scholars who argue strenuously that "any form of extraterritorial anti-bribery legislation, even the most perfectly conceived, must be considered imprudent under the global conditions of the late twentieth century." Steven R. Salbu, Extraterritorial Restriction of Bribery: A Premature Evocation of the Normative Global Village, 24 YALE J. INT'L L. 223, 226 (1999).
45. The factors causing changes in attitudes and policies include the model presented by the U.S. FCPA, the end of the cold war, further integration of Europe, the increase in international business mergers, the emergence of a borderless global market, and a heightened recognition of the economic costs of corruption. Barbara C. George & Kathleen Lacey, On the Threshold of the Adoption of Global Antibribery Legislation: A Critical Analysis of Current Domestic and International Efforts Toward the Reduction of Business Corruption, 32 VAND. J. TRANSNAT'L L. 17 (1999). Also, there have been numerous scandals involving corruption throughout the world including Indonesia, Japan, the European Union, the United States, and South Korea, to name but a few. See Overseer Tells Bosnia to Fight Corruption, INT'L HERALD TRIB., Aug. 19, 1999, at 6; Roy Denman, European Union: Enable Prodi's Commission to Do the Job, INT'L HERALD TRIB., July 22, 1999, at 8; William Drozdiak, Prosecutors Plan Criminal Investigation of Kohl, INT'L HERALD TRIB., Dec. 30, 1999, at 1; Alan Friedman, Berlusconi Gets 2nd Conviction in Week, INT'L HERALD TRIB., JULY 14, 1998, at 1; Michael Gordon et al., Tales of Corruption in Russia and a 'Lapse' by Bank of New York, INT'L HERALD TRIB., Sept. 24, 1999, at 23; Don Kirk, Foes in Seoul Say 'Mr Clean' is Losing Fight on Corruption, INT'L HERALD TRIB., Aug. 4, 1999, at 1; Philip Shenon, IMF Storms Indonesia's Family Citadel, INT'L HERALD TRIB., Jan. 17, 1998, at 1; Greg Wiegand, Bribery Scandal Claims Japan's Finance Minister, U.S.A. TODAY, Jan. 28, 1998, at 4B.
46. The factors causing changes in attitudes and policies include the model presented by the U.S. FCPA, the end of the cold war, further integration of Europe, the increase in international business mergers, the emergence of a borderless global market, and a heightened recognition of the economic costs of corruption. Barbara C. George & Kathleen Lacey, On the Threshold of the Adoption of Global Antibribery Legislation: A Critical Analysis of Current Domestic and International Efforts Toward the Reduction of Business Corruption, 32 VAND. J. TRANSNAT'L L. 17 (1999). Also, there have been numerous scandals involving corruption throughout the world including Indonesia, Japan, the European Union, the United States, and South Korea, to name but a few. See Overseer Tells Bosnia to Fight Corruption, INT'L HERALD TRIB., Aug. 19, 1999, at 6; Roy Denman, European Union: Enable Prodi's Commission to Do the Job, INT'L HERALD TRIB., July 22, 1999, at 8; William Drozdiak, Prosecutors Plan Criminal Investigation of Kohl, INT'L HERALD TRIB., Dec. 30, 1999, at 1; Alan Friedman, Berlusconi Gets 2nd Conviction in Week, INT'L HERALD TRIB., JULY 14, 1998, at 1; Michael Gordon et al., Tales of Corruption in Russia and a 'Lapse' by Bank of New York, INT'L HERALD TRIB., Sept. 24, 1999, at 23; Don Kirk, Foes in Seoul Say 'Mr Clean' is Losing Fight on Corruption, INT'L HERALD TRIB., Aug. 4, 1999, at 1; Philip Shenon, IMF Storms Indonesia's Family Citadel, INT'L HERALD TRIB., Jan. 17, 1998, at 1; Greg Wiegand, Bribery Scandal Claims Japan's Finance Minister, U.S.A. TODAY, Jan. 28, 1998, at 4B.
47. The factors causing changes in attitudes and policies include the model presented by the U.S. FCPA, the end of the cold war, further integration of Europe, the increase in international business mergers, the emergence of a borderless global market, and a heightened recognition of the economic costs of corruption. Barbara C. George & Kathleen Lacey, On the Threshold of the Adoption of Global Antibribery Legislation: A Critical Analysis of Current Domestic and International Efforts Toward the Reduction of Business Corruption, 32 VAND. J. TRANSNAT'L L. 17 (1999). Also, there have been numerous scandals involving corruption throughout the world including Indonesia, Japan, the European Union, the United States, and South Korea, to name but a few. See Overseer Tells Bosnia to Fight Corruption, INT'L HERALD TRIB., Aug. 19, 1999, at 6; Roy Denman, European Union: Enable Prodi's Commission to Do the Job, INT'L HERALD TRIB., July 22, 1999, at 8; William Drozdiak, Prosecutors Plan Criminal Investigation of Kohl, INT'L HERALD TRIB., Dec. 30, 1999, at 1; Alan Friedman, Berlusconi Gets 2nd Conviction in Week, INT'L HERALD TRIB., JULY 14, 1998, at 1; Michael Gordon et al., Tales of Corruption in Russia and a 'Lapse' by Bank of New York, INT'L HERALD TRIB., Sept. 24, 1999, at 23; Don Kirk, Foes in Seoul Say 'Mr Clean' is Losing Fight on Corruption, INT'L HERALD TRIB., Aug. 4, 1999, at 1; Philip Shenon, IMF Storms Indonesia's Family Citadel, INT'L HERALD TRIB., Jan. 17, 1998, at 1; Greg Wiegand, Bribery Scandal Claims Japan's Finance Minister, U.S.A. TODAY, Jan. 28, 1998, at 4B.
48. The factors causing changes in attitudes and policies include the model presented by the U.S. FCPA, the end of the cold war, further integration of Europe, the increase in international business mergers, the emergence of a borderless global market, and a heightened recognition of the economic costs of corruption. Barbara C. George & Kathleen Lacey, On the Threshold of the Adoption of Global Antibribery Legislation: A Critical Analysis of Current Domestic and International Efforts Toward the Reduction of Business Corruption, 32 VAND. J. TRANSNAT'L L. 17 (1999). Also, there have been numerous scandals involving corruption throughout the world including Indonesia, Japan, the European Union, the United States, and South Korea, to name but a few. See Overseer Tells Bosnia to Fight Corruption, INT'L HERALD TRIB., Aug. 19, 1999, at 6; Roy Denman, European Union: Enable Prodi's Commission to Do the Job, INT'L HERALD TRIB., July 22, 1999, at 8; William Drozdiak, Prosecutors Plan Criminal Investigation of Kohl, INT'L HERALD TRIB., Dec. 30, 1999, at 1; Alan Friedman, Berlusconi Gets 2nd Conviction in Week, INT'L HERALD TRIB., JULY 14, 1998, at 1; Michael Gordon et al., Tales of Corruption in Russia and a 'Lapse' by Bank of New York, INT'L HERALD TRIB., Sept. 24, 1999, at 23; Don Kirk, Foes in Seoul Say 'Mr Clean' is Losing Fight on Corruption, INT'L HERALD TRIB., Aug. 4, 1999, at 1; Philip Shenon, IMF Storms Indonesia's Family Citadel, INT'L HERALD TRIB., Jan. 17, 1998, at 1; Greg Wiegand, Bribery Scandal Claims Japan's Finance Minister, U.S.A. TODAY, Jan. 28, 1998, at 4B.
49. The factors causing changes in attitudes and policies include the model presented by the U.S. FCPA, the end of the cold war, further integration of Europe, the increase in international business mergers, the emergence of a borderless global market, and a heightened recognition of the economic costs of corruption. Barbara C. George & Kathleen Lacey, On the Threshold of the Adoption of Global Antibribery Legislation: A Critical Analysis of Current Domestic and International Efforts Toward the Reduction of Business Corruption, 32 VAND. J. TRANSNAT'L L. 17 (1999). Also, there have been numerous scandals involving corruption throughout the world including Indonesia, Japan, the European Union, the United States, and South Korea, to name but a few. See Overseer Tells Bosnia to Fight Corruption, INT'L HERALD TRIB., Aug. 19, 1999, at 6; Roy Denman, European Union: Enable Prodi's Commission to Do the Job, INT'L HERALD TRIB., July 22, 1999, at 8; William Drozdiak, Prosecutors Plan Criminal Investigation of Kohl, INT'L HERALD TRIB., Dec. 30, 1999, at 1; Alan Friedman, Berlusconi Gets 2nd Conviction in Week, INT'L HERALD TRIB., JULY 14, 1998, at 1; Michael Gordon et al., Tales of Corruption in Russia and a 'Lapse' by Bank of New York, INT'L HERALD TRIB., Sept. 24, 1999, at 23; Don Kirk, Foes in Seoul Say 'Mr Clean' is Losing Fight on Corruption, INT'L HERALD TRIB., Aug. 4, 1999, at 1; Philip Shenon, IMF Storms Indonesia's Family Citadel, INT'L HERALD TRIB., Jan. 17, 1998, at 1; Greg Wiegand, Bribery Scandal Claims Japan's Finance Minister, U.S.A. TODAY, Jan. 28, 1998, at 4B.
50. The factors causing changes in attitudes and policies include the model presented by the U.S. FCPA, the end of the cold war, further integration of Europe, the increase in international business mergers, the emergence of a borderless global market, and a heightened recognition of the economic costs of corruption. Barbara C. George & Kathleen Lacey, On the Threshold of the Adoption of Global Antibribery Legislation: A Critical Analysis of Current Domestic and International Efforts Toward the Reduction of Business Corruption, 32 VAND. J. TRANSNAT'L L. 17 (1999). Also, there have been numerous scandals involving corruption throughout the world including Indonesia, Japan, the European Union, the United States, and South Korea, to name but a few. See Overseer Tells Bosnia to Fight Corruption, INT'L HERALD TRIB., Aug. 19, 1999, at 6; Roy Denman, European Union: Enable Prodi's Commission to Do the Job, INT'L HERALD TRIB., July 22, 1999, at 8; William Drozdiak, Prosecutors Plan Criminal Investigation of Kohl, INT'L HERALD TRIB., Dec. 30, 1999, at 1; Alan Friedman, Berlusconi Gets 2nd Conviction in Week, INT'L HERALD TRIB., JULY 14, 1998, at 1; Michael Gordon et al., Tales of Corruption in Russia and a 'Lapse' by Bank of New York, INT'L HERALD TRIB., Sept. 24, 1999, at 23; Don Kirk, Foes in Seoul Say 'Mr Clean' is Losing Fight on Corruption, INT'L HERALD TRIB., Aug. 4, 1999, at 1; Philip Shenon, IMF Storms Indonesia's Family Citadel, INT'L HERALD TRIB., Jan. 17, 1998, at 1; Greg Wiegand, Bribery Scandal Claims Japan's Finance Minister, U.S.A. TODAY, Jan. 28, 1998, at 4B.
51. The factors causing changes in attitudes and policies include the model presented by the U.S. FCPA, the end of the cold war, further integration of Europe, the increase in international business mergers, the emergence of a borderless global market, and a heightened recognition of the economic costs of corruption. Barbara C. George & Kathleen Lacey, On the Threshold of the Adoption of Global Antibribery Legislation: A Critical Analysis of Current Domestic and International Efforts Toward the Reduction of Business Corruption, 32 VAND. J. TRANSNAT'L L. 17 (1999). Also, there have been numerous scandals involving corruption throughout the world including Indonesia, Japan, the European Union, the United States, and South Korea, to name but a few. See Overseer Tells Bosnia to Fight Corruption, INT'L HERALD TRIB., Aug. 19, 1999, at 6; Roy Denman, European Union: Enable Prodi's Commission to Do the Job, INT'L HERALD TRIB., July 22, 1999, at 8; William Drozdiak, Prosecutors Plan Criminal Investigation of Kohl, INT'L HERALD TRIB., Dec. 30, 1999, at 1; Alan Friedman, Berlusconi Gets 2nd Conviction in Week, INT'L HERALD TRIB., JULY 14, 1998, at 1; Michael Gordon et al., Tales of Corruption in Russia and a 'Lapse' by Bank of New York, INT'L HERALD TRIB., Sept. 24, 1999, at 23; Don Kirk, Foes in Seoul Say 'Mr Clean' is Losing Fight on Corruption, INT'L HERALD TRIB., Aug. 4, 1999, at 1; Philip Shenon, IMF Storms Indonesia's Family Citadel, INT'L HERALD TRIB., Jan. 17, 1998, at 1; Greg Wiegand, Bribery Scandal Claims Japan's Finance Minister, U.S.A. TODAY, Jan. 28, 1998, at 4B.
52. The factors causing changes in attitudes and policies include the model presented by the U.S. FCPA, the end of the cold war, further integration of Europe, the increase in international business mergers, the emergence of a borderless global market, and a heightened recognition of the economic costs of corruption. Barbara C. George & Kathleen Lacey, On the Threshold of the Adoption of Global Antibribery Legislation: A Critical Analysis of Current Domestic and International Efforts Toward the Reduction of Business Corruption, 32 VAND. J. TRANSNAT'L L. 17 (1999). Also, there have been numerous scandals involving corruption throughout the world including Indonesia, Japan, the European Union, the United States, and South Korea, to name but a few. See Overseer Tells Bosnia to Fight Corruption, INT'L HERALD TRIB., Aug. 19, 1999, at 6; Roy Denman, European Union: Enable Prodi's Commission to Do the Job, INT'L HERALD TRIB., July 22, 1999, at 8; William Drozdiak, Prosecutors Plan Criminal Investigation of Kohl, INT'L HERALD TRIB., Dec. 30, 1999, at 1; Alan Friedman, Berlusconi Gets 2nd Conviction in Week, INT'L HERALD TRIB., JULY 14, 1998, at 1; Michael Gordon et al., Tales of Corruption in Russia and a 'Lapse' by Bank of New York, INT'L HERALD TRIB., Sept. 24, 1999, at 23; Don Kirk, Foes in Seoul Say 'Mr Clean' is Losing Fight on Corruption, INT'L HERALD TRIB., Aug. 4, 1999, at 1; Philip Shenon, IMF Storms Indonesia's Family Citadel, INT'L HERALD TRIB., Jan. 17, 1998, at 1; Greg Wiegand, Bribery Scandal Claims Japan's Finance Minister, U.S.A. TODAY, Jan. 28, 1998, at 4B.
53. The factors causing changes in attitudes and policies include the model presented by the U.S. FCPA, the end of the cold war, further integration of Europe, the increase in international business mergers, the emergence of a borderless global market, and a heightened recognition of the economic costs of corruption. Barbara C. George & Kathleen Lacey, On the Threshold of the Adoption of Global Antibribery Legislation: A Critical Analysis of Current Domestic and International Efforts Toward the Reduction of Business Corruption, 32 VAND. J. TRANSNAT'L L. 17 (1999). Also, there have been numerous scandals involving corruption throughout the world including Indonesia, Japan, the European Union, the United States, and South Korea, to name but a few. See Overseer Tells Bosnia to Fight Corruption, INT'L HERALD TRIB., Aug. 19, 1999, at 6; Roy Denman, European Union: Enable Prodi's Commission to Do the Job, INT'L HERALD TRIB., July 22, 1999, at 8; William Drozdiak, Prosecutors Plan Criminal Investigation of Kohl, INT'L HERALD TRIB., Dec. 30, 1999, at 1; Alan Friedman, Berlusconi Gets 2nd Conviction in Week, INT'L HERALD TRIB., JULY 14, 1998, at 1; Michael Gordon et al., Tales of Corruption in Russia and a 'Lapse' by Bank of New York, INT'L HERALD TRIB., Sept. 24, 1999, at 23; Don Kirk, Foes in Seoul Say 'Mr Clean' is Losing Fight on Corruption, INT'L HERALD TRIB., Aug. 4, 1999, at 1; Philip Shenon, IMF Storms Indonesia's Family Citadel, INT'L HERALD TRIB., Jan. 17, 1998, at 1; Greg Wiegand, Bribery Scandal Claims Japan's Finance Minister, U.S.A. TODAY, Jan. 28, 1998, at 4B.
54. See Philip M. Nichols, Regulating Transnational Bribery in Times of Globalization and Fragmentation, 24 YALE INT'L L.J. 257, 274 (1999).
55. GEORGE MOODY-STUART, GRAND CORRUPTION - HOW BUSINESS BRIBES DAMAGE DEVELOPING COUNTRIES (1997); see Norma M. Rubin, A Convergence of 1996 and 1997 Global Efforts to Curb Corruption and Bribery in International Business Transactions: The Legal Implications of the OECD Recommendations and Convention for the United States, Germany, and Switzerland, 14 AM. U. INT'L L. REV. 257 (1998).
56. GEORGE MOODY-STUART, GRAND CORRUPTION - HOW BUSINESS BRIBES DAMAGE DEVELOPING COUNTRIES (1997); see Norma M. Rubin, A Convergence of 1996 and 1997 Global Efforts to Curb Corruption and Bribery in International Business Transactions: The Legal Implications of the OECD Recommendations and Convention for the United States, Germany, and Switzerland, 14 AM. U. INT'L L. REV. 257 (1998).
57. Although similar types of extraterritorial prohibitions (e.g., the FCPA) against bribery have been criticized by many as moral imperialism, and arguments have been made that there are substantial cultural differences in what is considered bribery, there is a covert nature to the action which is clear indication that it is still considered unethical and inappropriate. Despite ethnic and cultural differences, bribery is always done in a furtive fashion. No one advertises that a bribe can be arranged or that a bribe will be accepted even in countries where it is commonly practiced. No one is honored as a big briber or a big bribee. JOHN T. NOONAN, BRIBES (1984) (John T. Noonan is currently a judge on the United States Court of Appeals for the Ninth Circuit. He was formerly a faculty member in the School of Law at the University of California, Berkeley.). Officials do not openly practice and attempt to publicly justify the acceptance of payoffs for granting preferential treatment. See id. at 704-05 .
58. Although similar types of extraterritorial prohibitions (e.g., the FCPA) against bribery have been criticized by many as moral imperialism, and arguments have been made that there are substantial cultural differences in what is considered bribery, there is a covert nature to the action which is clear indication that it is still considered unethical and inappropriate. Despite ethnic and cultural differences, bribery is always done in a furtive fashion. No one advertises that a bribe can be arranged or that a bribe will be accepted even in countries where it is commonly practiced. No one is honored as a big briber or a big bribee. JOHN T. NOONAN, BRIBES (1984) (John T. Noonan is currently a judge on the United States Court of Appeals for the Ninth Circuit. He was formerly a faculty member in the School of Law at the University of California, Berkeley.). Officials do not openly practice and attempt to publicly justify the acceptance of payoffs for granting preferential treatment. See id. at 704-05 .
59. See Fighting Corruption in Developing Countries and Emerging Economies: The Role of the Private Sector, Remarks of Andrew J. Pincus, General Counsel, U.S. Dep't of Commerce, Panel on Global and Regional Anti-Corruption Frameworks, Wash. D.C., Feb. 22, 23, 1999.
60. Statement by President William J. Clinton upon Signing S.2375, 34 WEEKLY COMP. PRES. DOC. 2290 (Nov. 16, 1998).
61. See Briefing by Undersecretary of State, Stuart Eizenstat, and Undersecretary of Commerce, David Aaron, The OECD Anti-Bribery Convention, FED. NEWS SERV., June 30, 1999 [hereinafter Briefing].
62. See Agustin Gurza, In Mexico, Corruption Can be Hazardous to One's Health, L.A. TIMES, May 25, 1999, at B1.
63. See Paul Blustein, Kantor Weighs Sanctions to Fight Overseas Bribes, WASH. POST, March 7, 1996, at D9.
64. See id.
65. Transparency International (TI) is a conglomeration of business and government veterans from around the world who are trying to promote international business ethics, with elimination of bribery and corruption at the forefront of their list. A conference on Accountability and Transparency in International Economic Development sponsored by the German Foundation for International Development (DSE), held in Berlin in May 1993 was the public launching point for TI and its anti-corruption agenda. GERMAN FOUNDATION FOR INTERNATIONAL DEVELOPMENT, ACCOUNTABILITY AND TRANSPARENCY IN INTERNATIONAL ECONOMIC DEVELOPMENT (May 1993) [hereinafter Conference].
66. Transparency International (visited Jan. 1999) 〈http://www.transparency.de/〉.
67. See Nichols, supra note 42, 274.
68. See Briefing, supra note 47.
69. The TI Corruption Perception Index (CPI) is published in cooperation with the University of Göttingen (Johann Graf Lambsdorff) and has become an internationally acknowledged instrument for measuring corrupt practices as perceived by business people. The Index draws on surveys undertaken by Gallup International, the World Competitiveness Yearbook, by Political and Economic Risk Consultancy in Hong Kong, DRI/McGraw Hill Global Risk Service, Political Risk Services in Syracuse, NY, among other sources. TI is considering methodological improvements to the CPI intended to strengthen its validity and to respond to critical comments from the worldwide community. For further information regarding the CPI, see Transparency International, Corruption Perception Index, July 31, 1998 〈http://www.transparency.de/documents/cpi/index.html〉.
70. Conference, supra note 51.
71. Id.
72. David E. Rovella, Anti-Bribery Treaty Set for Signing, NAT'L L.J., Dec. 22, 1997, at B1 (citing a statement by G. Hamilton Loeb of Los Angeles' Paul, Hastings, Janofsky & Walker L.L.P.). Note that the OECD countries produce two-thirds of the world's goods and services. OECD, supra note 4.
73. See Michael J. Hershman, Criminalized Foreign Bribery Will Improve Trade, NAT. L.J., April 27, 1998, at A23.
74. See Graham Bowley, Goodbye Mr. 10%, FIN. TIMES, July 22, 1997, at 15. It has been discovered that the old 10% rate has given way to demands as high as 30%. Id.576
75. See Rubin, supra note 43.
76. See TI Corruption Perception Index , supra note 55; Nichols, supra note 42, at 276.
77. See Briefing, supra note 47.
78. 15 U.S.C.A. § 78dd-1 (1998).
79. Id.
80. Id.
81. Briefing, supra note 47.
82. See Paul Blustein, Pact to Bar Bribery is Reached; Major Nations Agree to U.S. Request, WASH. POST, May 24, 1997, at F1.
83. Id.; see Paul Blustein, Fight Looms over Foreign Bribery; France, Germany Blocking Efforts to Outlaw Practice, U.S. Officials Say, WASH. POST, May 9, 1997, at A22.
84. Id.; see Paul Blustein, Fight Looms over Foreign Bribery; France, Germany Blocking Efforts to Outlaw Practice, U.S. Officials Say, WASH. POST, May 9, 1997, at A22.
85. See Blustein, supra note 68. It should be noted that both the French and Germans expressed a clear antipathy to corrupt conduct in international trade. The economics counselor at the German Embassy said that an international convention for criminalizing corruption is needed because the legal framework in each country is different. See Blustein, supra note 69. This statement reflected the basis of the fear and trepidation felt by those countries that were reluctant about OECD involvement in acting against bribery. Those countries did not want their international businesses to be placed in the same position as the U.S. businesses under the provisions of the FCPA, that is, being prohibited from engaging in bribery while competitors from other countries without such prohibitions were winning the contracts.
86. See OECD Convention, supra note 1, art. 15.
87. See Thomas Lippman, U.S. Seeks to Halt Illegal Payoffs by Foreign Corporations; State Wants Industrialized Nations to Stop Practice; CIA Trying to Uncover Bribery that Costs Americans Contracts, WASH. POST, Dec. 3, 1993, at A10.
88. Recommendation, supra note 23.
89. Revised Recommendation, supra note 25.
90. OECD Convention, supra note 1.
91. 15 U.S.C.A. § 78dd-1 (1998).
92. Recommendation, supra note 23. "The 1994 Recommendation calls on member countries to take effective measures to deter, prevent and combat bribery of foreign public officials in connection with international business transactions . . . ." Note by Secretary General to the OECD Council at Ministerial Level, OECD Initiatives to Fight Corruption (May 1997).
93. Recommendation, supra note 23.
94. Id.
95. Revised Recommendation, supra note 25.
96. Id. (stating that "an international convention in conformity with the agreed common elements set forth in the Annex, is an appropriate instrument to attain such criminalisation rapidly").
97. Tax Recommendation, supra note 24; see OECD Looking to Encourage Non-Member Countries to Adopt Anti-Bribery Laws, DAILY TAX REP., Apr. 17, 1996, at D7.
98. Tax Recommendation, supra note 24.
99. See OECD, Update on the Implementation of the OECD Recommendation on the Tax Deductibility of Bribes to Foreign Public Officials, Apr. 28, 1997 〈http://www.oecd.org/daf/cmis/ bribery/tax98.htm〉.
100. See id. (noting that Australia, Belgium, and Switzerland have such bills under consideration).
101. See Blustein, supra note 69.
102. See id.
103. See OECD Convention, supra note 1.
104. See OECD, supra note 84.
105. See id.
106. Steven R. Salbu, Are Extraterritorial Restrictions on Bribery a Viable and Desirable International Policy Goal under the Global Conditions of the Late Twentieth Century, 24 YALE J. INT'L L. 223, 232 (1999).
107. Treaty Establishing the European Economic Community, Mar. 25, 1957, art. 189(B), 298 U.N.T.S. 11 (entered into force Jan. 1, 1958) (commonly referred to as the Treaty of Rome) [hereinafter EEC Treaty]. The concept of directives has been described as creating freedom within boundaries, and allowing for cultural diversity in the establishment of laws within unique nations. See Mary J. Dundas et al., The Transposal Processes of the EC Directives and the U.S. Uniform Codes: A Comparative Analysis , 21 B.C. INT'L & COMP. L. REV. 43 (1998).
108. The 29 members who ratified the Convention are Australia, Austria, Belgium, Canada, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, Netherlands, New Zealand, Norway, Poland, Portugal, Spain, Sweden, Switzerland, Turkey, the United Kingdom, and the United States. Additionally, five non-members ratified the Convention, including Argentina, Brazil, Bulgaria, Chile, and the Slovak Republic. OECD, About OECD (visited Jun. 6,1999) 〈http//www.oecd.org/about/general/index.htm〉.
109. OECD Convention, supra note 1.
110. See Nancy Zucker Boswell, Crackdown on Corruption, LEGAL TIMES, Aug. 24, 1998, at S42.
111. OECD , Commentaries on the Convention on Combating Bribery of Officials in International Business Transactions, Nov. 21,1997 〈http://www.oecd.org/dafd/cmis/bribery/20nov2e.htm〉 [hereinafter Commentaries].
112. See supra note 8; Ayesha Qayyam, New Anti-Bribery Treaty Analyzed, INT'L COM. LITIG., Mar. 1998, at 7.
113. OECD Convention, supra note 1, art. 12.
114. OECD Convention, supra note 1, art. 15.
115. OECD Convention, supra note 1; Foreign Corrupt Practices Act of 1977, supra note 2; Trade Act, supra note 5.
116. OECD Convention, supra note 1, art. 1.
117. Id. The language in the initial drafts only referred to illicit payments for the purpose of obtaining business, but upon further review the OECD changed the language to include payments for any "other improper advantage."
118. Commentaries, supra note 95.
119. OECD Convention, supra note 1, art. 1.
120. TRADE ACT, supra note 5.
121. OECD Convention, supra note 1, art. 1.
122. Id.
123. Id.
124. Commentaries, supra note 95.
125. OECD Convention, supra note 1, art. 3, ¶1.
126. Id.
127. Id.
128. Id. art. 4 (utilizing the term "Party" to refer to individual signatory nations).
129. Commentaries, supra note 95.
130. Id.
131. OECD Convention, supra note 1, art. 9
132. Id. art. 10.
133. Id.
134. Id.
135. Id. art. 12.
136. Id.
137. Id. arts. 14, 15.
138. Id. art. 15.
139. See Blustein, supra note 69.
140. See James, supra note 27.
141. See OECD Anti-Corruption Unit, Most Frequently Asked Questions, 〈http://www. oecd.org/daf/nocorruption/faq.htm〉 (referring to 15 U.S.C. § 78m(b)(2)(A), (B) (1998)).
142. OECD Convention, supra note 1, art. 8, ¶ 1.
143. Id.
144. The Committee on International Investment and Multinational Enterprises was established in 1975. It was created as a result of several smaller members of the OECD such as Canada, Sweden, and Belgium advocating in the late 1960s the creation of a committee within the organization which would draft guidelines for the behavior of multinational enterprises. See Michael Henderson, The OECD as an Instrument of National Policy, 36 INT'L J. 802, 803 (1981).
145. See OECD, Bribery in International Business Transactions, Review of the 1994 Recommendation, May 1997 〈 http://www.oecd.org/search97cgi/s97〉.
146. See OECD Anti-Corruption Unit, Procedure of Self and Mutual Evaluation of Implementation of the Convention and the Revised Recommendation, (updated Mar. 1999) 〈http;www.oecd.org/daf/nocorruption/selfe.htm〉.
147. See id.
148. See id.
149. See id.
150. See id.
151. See id.
152. See id.
153. See id.
154. See id.
155. See id.
156. See id.
157. See id.
158. See OECD Anti-Corruption Unit, Most Frequently Asked Questions (updated May 21, 1999) 〈http://www.oecd.org/daf/nocorruption/faq.htm〉.
159. See id.
160. OECD, Bribery in International Business Transactions Review of the 1994 Recommendation (updated Nov. 1999) 〈http:/www.oecd.org/search97cgi/s97.htm〉.
161. See id.
162. See id.
163. See OECD Anti-corruption Unit, About Us (updated June 1999) 〈http://www.oecd. org./daf/nocorruption-aboutus.htm〉.
164. See id.
165. 'Civil society' in this context applies to "all elements of society, and all those arrangements within it, that exist outside the state's reach or instigation." See David Rieff, The False Dawn of Civil Society, THE NATION, Feb. 22, 1999, at 11.
166. See OECD Anti-Corruption Unit, supra note 148.
167. See id.
168. See id.
169. See OECD Anti-Corruption Unit, Most Frequently Asked Questions (updated June 6, 1999) 〈http://www.oecd.org/daf/nocorruption/faq.htm〉.
170. See id.
171. See OECD, The DAC Recommendation on Anti-Corruption Proposals for Aid-Funded Procurement, Report by the Development Assistance Committee on the Follow-Up by OECD Members, May 1997 〈http://www.oecd.org/daf/cmis/bribery/bribdac.htm〉.
172. See id.
173. See id.
174. See Speech by Donald J. Johnston, Secretary General of the OECD, Building Integrity in Government: The OECD as Part of a Multiple Response, International Conference on Fighting Corruption and Safeguarding Integrity among Justice and Security Officials, Wash. D.C., Feb. 24, 1999.
175. OECD, The DAC Recommendation, supra note 155.
176. See OECD, Activities of the OECD Development Centre on Corruption Issues (visited July 23, 1999) 〈http://www.oecd.org/search97cgi/s97_cgi.exe〉.
177. See id.
178. See id.
179. See id.
180. See id.
181. See id.
182. See Workshop on Combating Bribery in International Business Transactions, Chairman's Conclusions, Buenos Aires, Sept. 7 & 8, 1998 〈http://www.oecd.org/daf/cmis/bribery/argchcon.htm〉.
183. See id.
184. See id.
185. See id.
186. See Organization of American States: Inter-American Convention against Corruption, Caracas, Mar. 29, 1996 [hereinafter OAS Convention].
187. See Workshop on Combating Bribery, supra note 167 〈http://www.oecd.org/daf/cmis/bribery/argchcon.htm〉.
188. See id.
189. See Conference on Fighting Corruption in Developing Countries and Emerging Economies: The Role of the Private Sector, Washington, D.C., Feb. 22 & 23, 1999.
190. See id.
191. See id.
192. See id.
193. Those twenty nations are: Austria, Australia, Belgium, Bulgaria, Canada, the Czech Republic, Finland, Germany, Greece, Hungary, Iceland, Japan, Korea, Mexico, Norway, the Slovak Republic, Spain, Sweden, the United Kingdom, and the United States. OECD Anti-Corruption Unit (updated Jan. 24, 2000) 〈http//www.oecd.org/daf/nocorruption〉.
194. OECD Convention, supra note 1, art. 8, ¶ 1; 15 U.S.C. §§ 78dd-1(a)(2)(iii), -2 (1998).
195. 15 U.S.C. §§ 78dd-1(a)(2)(iii), (3)(iii) (1998).
196. 15 U.S.C. § 78dd-1(f)(1) (1998).
197. 15 U.S.C. §§ 78dd-1(b)(1)(A), (B) (1998); see Lucinda Low & Michael Burton, Corruption Is Target of Multilateral Efforts, NAT'L L.J., MAY 4, 1998, at C5.
198. 15 U.S.C. §§ 78dd-1(b)(1)(A), (B) (1998); see Lucinda Low & Michael Burton, Corruption Is Target of Multilateral Efforts, NAT'L L.J., MAY 4, 1998, at C5.
199. 15 U.S.C. § 78dd-1(c)(1)(g) (1998).
200. OECD Convention, supra note 1, art. 1.
201. 15 U.S.C. § 78dd-1 (1988).
202. 15 U.S.C. § 78dd-2(a) (1998).
203. 15 U.S.C. § 78dd-2(a)(4)(e) (1998).
204. 15 U.S.C. § 78dd-2(6)(a); see Briefing, supra note 47.
205. Briefing, supra note 47.
206. See Press Information of the Federal Republic of Germany, Feb. 15, 1999 〈http://www.bundesregierung.de:80/plweb-cgi/〉.
207. Si News Update, Transparency International 〈http://www.transparency.de/organisation/chapters/Germany/New.htm〉.
208. Gesetz zur Bekämpfung Internationaler Bestechung, v. 9.10.1998 (BGBl. II S.2327).
209. Administrative Offenses Act, §§ 334, 335; see also SECRETARY OF COMMERCE, FIRST ANNUAL REPORT TO CONGRESS ON THE OECD ANTI-BRIBERY CONVENTION, June 1999, at 18.
210. See Secretary of Commerce, supra note 193.
211. Stuerentlastunsgesetz of 24 Mar. 1999, §4, ¶5 (BGBl I, S.402).
212. Prior to this, a 1996 tax law denied tax deductibility of domestic bribe payments when the payments led to a criminal conviction. Jahressteuergesetz, §4 (1996); Transparency International, Die steuerliche Absetzbarkeit von SchmiergeldzahlungenaarnäckigeLobbyarbeit 〈http://www. transparency.de/organisation/chapters/Germany/Sterab.htm〉.
213. Corrective Finance Bill, art. 27 (1997); see Carel Mohn, TI Working Paper: Akteneinsichtsrecht, Sept. 1998, at 28 〈http://www.transparency.de/documents/workpapers/akteneinsichtsrecht. html〉 (on file with authors).
214. Public Bodies Corrupt Practices Act of 1889, 52 & 53 Vict., ch. 69 (Eng.); Prevention of Corruption Act of 1906, 6 Edw. 7, ch. 34 (Eng.); Prevention of Corruption Act of 1916, 6 & 7, Geo. 5, ch. 64 (Eng.); see Mohn, supra note 197, at 29.
215. See Mohn, supra note 197, at 29.
216. See id.
217. Income and Corporations Tax Act of 1988, as amended by Finance Act of 1993, ¶577A.
218. See Mohn, supra note 197, at 41.
219. See OECD Anti-Corruption Unit (updated Jan. 24, 2000) 〈http//www.oecd.org/daf/nocorruption〉.
220. See id.
221. See Lawrence Newman, The New OECD Convention on Combating Bribery, N.Y.L.J., Mar. 29, 1999, at 6.
222. See OECD Anti-Corruption Unit, Most Frequently Asked Questions (updated Jan. 24, 2000) 〈http://www.oecd.org/daf/nocorruption/faq.htm〉.
223. OECD Convention, supra note 1, art.1.
224. See Newman, supra note 205.
225. See id.
226. Eastman Kodak v. Kavlin, 978 F. Supp. 1078 (S.D. Fla. 1997).
227. See Newman, supra note 205, at 6.
228. Newman, supra note 205.
229. See Nancy Zucker Boswell, Crackdown on Corruption, LEGAL TIMES, Aug. 24, 1998.
230. See id.
231. See Briefing, supra note 47.
232. See id.
233. See id.
234. See id.
235. See id.
236. See id. Germany is a pertinent example of a country where proof of conviction for violation of the anti-bribery law is essentially a prerequisite to deny a tax deduction for a bribe.
237. See Boswell, supra note 213.
238. See Briefing, supra note 47.
239. See id. (stating that "Norway's implementing legislation . . . is only two years, which may be too short to meet the Convention's terms of 'an adequate period of time for the investigation and prosecution of this offence'").
240. OECD Forum 2000, The Conference, June 26-28, 2000 (visited Feb. 3, 2000) 〈http//www.oecd.org./forum2000/conference/index.htm〉.
241. See Speech by Donald J. Johnston, Secretary General of the OECD, Building Integrity in Government: The OECD as Part of a Multiple Response, International Conference on Fighting Corruption and Safeguarding Integrity among Justice and Security Officials, Wash. D.C., Feb. 24, 1999.
242. See OECD Anti-Corruption Unit, Most Frequently Asked Questions (updated May 21, 1999) 〈http://www.oecd.org/daf/nocorruption/faq.htm〉.
243. See id.
244. See Recommendation of the OECD Council, Improving Ethical Conduct in the Public Service, April 23, 1998 〈http://www.oecd.org/puma/gvrnance/ethics/pubs/rec98/rec98e. htm〉.
245. See id.
246. See id.
247. See Keith Richburg, World Bank Draws Fire in Indonesia, WASH. POST., Feb. 5, 1998, at A19 (describing how Indonesia leaders criticized World Bank for making huge loans to the Indonesian government despite having information regarding the rife corruption by President Suharto's friends and family).
248. See Steven Perlstein, Understanding the Asian Economic Crisis, WASH. POST, Jan 18, 1998, at A32.
249. See WORLD BANK, GUIDELINES: PROCUREMENT UNDER IBRD LOANS AND IDA CREDITS 7 (Aug. 1996); INTERNATIONAL MONETARY FUND, GOOD GOVERNANCE: THE IMF'S ROLE, (Aug. 1997).
250. See WORLD BANK, GUIDELINES: PROCUREMENT UNDER IBRD LOANS AND IDA CREDITS 7 (Aug. 1996); INTERNATIONAL MONETARY FUND, GOOD GOVERNANCE: THE IMF'S ROLE, (Aug. 1997).
251. See Rubin, supra note 43.
252. See George, supra note 41.
253. See OECD, OECD Principles of Corporate Governance (visited Feb. 3, 2000) 〈http://www.oecd.org/daf/governance/principles.htm〉.
254. See OECD Anti-Corruption Unit, About Us, (updated June 25, 1999) 〈http://www.oecd.org./daf/nocorruption-aboutus.htm〉.
255. See id.
256. See ORGANIZATION OF AMERICAN STATES (OAS), INTERAMERICAN CONVENTION AGAINST CORRUPTION, Caracas, March 29,1996 (last modified Apr. 22, 1998) 〈http//www.ita.doc.gov/legal/oas2.html〉.
257. See OECD, Anti-Corruption Ring Online, International Instruments, 〈http://www.oecd.org/daf/nocorruptionweb/law_treaties_biblio.htm〉; Briefing, supra note 47.
258. See OECD, supra note 240.
259. OECD Forum 2000, The Conference, June 26-28, 2000 (visited Feb. 3, 2000) 〈http//www.oecd.org./forum2000/conference/index.htm〉.
260. OECD, Business and Advisory Committee to the OECD (last updated Jan. 24, 2000) 〈http//www.biac.org/〉.
261. See Trade Union Advisory Committee, News (updated Jan. 28, 2000) 〈http//www.tuac. org/news/news.htm〉.
262. Transparency International, TI Mission Statement, What Makes It Different? (visited Jan. 2000) 〈http//www.transparency.de/documents/press-releases/1997.cpi.html〉.
263. 15 U.S.C.A. § 78dd-1 (1998).
264. See Simpson, supra note 39.
265. The fear expressed by some, which resulted in the provision that the Convention would not come into force until and unless there was ratification by five of the ten countries having the largest export shares among the OECD countries and representing at least 60% of the combined total exports of those countries demonstrates how apprehensive OECD members were that some major countries might take advantage of the restrictive anti-bribery conditions on prospective competitors. See OECD Convention, supra note 1, art. 15 〈http://www.oecd.org/daf/cmis/bribery/20nov1.htm〉.
266. See Salbu, supra note 91.
267. The additional five non-member signatories of the Convention - Argentina, Brazil, Bulgaria, Chile, and the Slovak Republic - also committed.
268. The 20 countries are Austria, Australia, Belgium, Bulgaria, Canada, the Czech Republic, Finland, Germany, Greece, Hungary, Iceland, Japan, Korea, Mexico, Norway, the Slovak Republic, Spain, Sweden, the United Kingdom, and the United States. OECD Anti-Corruption Unit, Combating Bribery in International Business Transactions (updated Jan. 24, 2000) 〈http://www.oecd.org/daf/nocorruption/〉.