Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Anti-Corruption Initiatives in a Multipolar World

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Anti-Corruption Initiatives in a Multipolar World

Article excerpt

This panel was convened at 10:45 am, Friday, April 5, by its moderator, Susan Rose-Ackerman of Yale Law School, who introduced the panelists: Nicola Bonucci of the Organisation for Economic Co-operation and Development; Pascale Dubois of the World Bank; Claudia J. Dumas of Transparency International-USA; and William Jacobson of Weatherford International. *

* Ms. Dumas and Mr. Jacobson did not submit remarks for the Proceedings.

THE FIGHT AGAINST FOREIGN BRIBERY AND INTERNATIONAL LAW: AN EXCEPTION OR A WAY FORWARD?

By Nicola Bonucci ([dagger])

Twenty years ago, the international legal framework related to the fight against corruption, and in particular the one concerning the fight against transnational bribery, was not even in limbo; it was nonexistent.

The specific offense of bribery of foreign public officials was not covered by any international or national rule, with one single--albeit important--exception. This was the Foreign Corrupt Practices Act (FCPA) adopted in 1977 by the United States following the so-called "Lockheed scandal." In fact, this was so often considered part of doing international business that not only was bribing a foreign public official not criminalized anywhere except in the United States, but in a number of countries (including G7 ones) a bribe was tax-deductible as a necessary, if not legitimate, business expense! On the international level there was not a single text concerning bribery, and the issue was taboo in many international institutions, like the United Nations or the World Bank.

Today, the panorama is radically different. Since the mid-1990s, there has been an array of treaties on the fight against bribery, including foreign bribery: an OAS convention, a convention negotiated with the framework of the OECD, two conventions negotiated within the Council of Europe (one by the African Union and one very recently by the Arab League), and naturally the United Nations Convention Against Corruption, signed in Merida in 2003 and entered into force on December 14, 2005. Today the fight against bribery is a universal issue, as UNCAC has 166 parties even though it should be noted that Asia has no regional convention on the subject.

This extraordinary movement of what, within the context of the International Law Commission, would be considered a progressive development of international law, led an Arbitral Tribunal of the International Centre for Settlement of Investment Disputes (ICSID) to recognize in an award rendered in 2006 that:

   in light of domestic laws and international conventions relating to
   corruption, and in light of the decisions taken in this matter by
   courts and arbitral tribunals, this Tribunal is convinced that
   bribery is contrary to the international public policy of most, if
   not all, States or, to use another formula, to transnational public
   policy. Thus, claims based on contracts of corruption or on
   contracts obtained by corruption cannot be upheld by this Arbitral
   Tribunal. (1)

As one of the main bases for its finding, the Tribunal noted that "a number of international conventions were concluded during the last decade" and that:

   in concluding these Conventions, States have shown their common
   will to fight corruption, not only through national legislation, as
   they did before, but also through international cooperation. In
   doing so, States not only reached a new stage in the fight against
   corruption, but also solidly confirmed their prior condemnation of
   it. (2)

As a practitioner with a public international law background, I thought it worthwhile to analyze this acceleration of history and treaty-making of the last 15 years, and to try to identify its specificity as well as its innovative features. During these brief remarks, I will focus on the international framework concerning the fight against bribery of foreign public officials (referred to here, for the sake of brevity, as "foreign bribery"). …

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