Academic journal article Law and Contemporary Problems

Exploring the Promise and Potential of a WTO Anti-Corruption Treaty

Academic journal article Law and Contemporary Problems

Exploring the Promise and Potential of a WTO Anti-Corruption Treaty

Article excerpt



Laws criminalizing foreign bribery are under-enforced. Efforts to reduce foreign bribery have resulted in increased awareness of the problems of corruption, widely-agreed-upon treaties, and domestic legislation. Despite this, anti-bribery laws often exist only on the books; they are not actively enforced. A new treaty, negotiated at the World Trade Organization (WTO), could improve enforcement. Despite the recent failure of multilateral trade negotiations at the WTO, (1) the WTO would likely still provide an effective forum for plurilateral agreements. The WTO is an appropriate forum for an anti-bribery treaty because corruption and anti-corruption efforts affect trade, and anti-corruption efforts align with the WTO's goals of promoting transparency and good governance. The proposed treaty could improve enforcement because it would include not only legislative and preventive obligations similar to those in other anti-corruption treaties but also substantive enforcement obligations. And, because it would be negotiated at the WTO, it would come with an international forum for resolving disputes and, therefore, for enforcing enforcement. The enforcement obligations proposed by this note include criteria that have already been used to assess whether states are enforcing anti-bribery laws. These more specific requirements should make compliance clearer and breach more obvious and thus easier to prove. Further, this note addresses which actors would have standing to sue at the WTO. It also suggests possible remedies for breach and discusses how to calculate the level of nullification and impairment for those remedies.

Part II of this note describes why a new anti-bribery treaty is necessary. Part III recommends the WTO as a forum for this treaty. Part IV discusses existing anti-corruption treaties and the substantive requirements of the treaty proposed by this note. Part V addresses which actors would have standing to sue, describes how a claim of breach would proceed, and suggests possible remedies. Part VI concludes.



Though once perceived as the "cost of doing business," bribery is now seen as detrimental to an efficient global economy. (2) Having a stable and accountable government that can maintain a growing, market-based economy becomes more difficult when government officials receive side payments. Without more vigorous enforcement measures in place, undesirable, yet persistent, abuses of the law will continue unhindered, and crime will continue to pay. Thus, to reduce corruption, the cost of doing business corruptly must be raised. (3) This can be achieved by threatening the supplier of the bribe with sanctions, fines, or criminal prosecutions. Because corruption has been recognized as harmful to the economy, anti-corruption has become the subject of domestic legislation and international treaties. (4)

What the current international anti-corruption program lacks is enforcement. Much of the world seems to agree that corruption is not only morally repugnant but also economically inefficient. (5) Regional and international treaties condemn corruption. Yet these treaties fail to provide an international enforcement mechanism, leaving enforcement solely to the domestic mechanisms. (6) As a result, anti-corruption laws are under-enforced. (7) A new anti-corruption treaty with an enforcement mechanism could improve enforcement and thus reduce corruption. Because the WTO already has a forum for enforcing its rules, it could be an effective organization under which to negotiate this new treaty.

Two existing anti-corruption treaties will be discussed--the United Nations Convention against Corruption (UNCAC) and the Organization for Economic Co-operation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Convention). …

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