Academic journal article American University International Law Review

The Criminalization of Bribery: Can the Foreign Corrupt Practices Act Be Applicable to the Anti-Bribery Provisions of the United Nations Convention against Corruption?

Academic journal article American University International Law Review

The Criminalization of Bribery: Can the Foreign Corrupt Practices Act Be Applicable to the Anti-Bribery Provisions of the United Nations Convention against Corruption?

Article excerpt

I. INTRODUCTION

Bribery, most commonly defined as "the abuse of public office for private gain,"1 is detrimental in both the public and the private sector.2 In light of this, the tenets of the anti-bribery provisions of the United Nations Convention Against Corruption ("UNCAC") harshly condemn both public and private sector bribery.3 Though the Foreign Corrupt Practices Act ("FCPA")-which serves as the primary instrument of the United States' compliance with the anti-bribery provisions of the UNCAC-recently has undergone unprecedented expansion, it still fails to address the full spectrum of bribery that the UNCAC criminalizes.4 Despite being non-mandatory, the UNCAC's provision prohibiting private sector bribery will have significant implications for the future of United States federal law and international law as a whole.

The United States has long acknowledged the issue of bribery in international business transactions as a serious threat.5 Recently, the international community as a whole has begun to recognize that bribery in international commercial transactions is an issue that deserves attention because of its far-reaching negative repercussions.6 Consequently, various multinational agreements have * 3 4 5 6 been created to address the problem of international commercial bribery.7 The UNCAC represents the most comprehensive and inclusive agreement created thus far.8

The United States has signed and ratified the UNCAC,9 which impresses various obligations related to corruption upon its signatories.10 Specifically, UNCAC Article 16(1) and Article 21 prohibit international commercial bribery in both the public and the private sector.11 The FCPA is the United States' primary instrument for combating international commercial bribery;12 it does not explicitly address private sector bribery, however, provoking the question of whether it can be used to address the spectrum of bribery incorporated by the UNCAC.13

This comment asserts that the scope of the FCPA has expanded through emerging enforcement trends toward application in the private sector; the applicability of the FCPA within the private sector, however, remains limited. Therefore, the FCPA does not comply with both anti-bribery provisions of the UNCAC. Part II of this comment will include background regarding the UNCAC and FCPA, as well as pertinent information regarding supplemental agreements that are of use to the present analysis. Part III argues that the United States does not meet the anti-bribery standards of the UNCAC because its federal anti-bribery provision, the FCPA, does not criminalize private sector bribery. Part IV will recommend ways that the United States can achieve full compliance with the UNCAC's anti-bribery obligations, such as by amending the FCPA or adopting new legislation specifically addressing private sector bribery. Finally, Part V concludes that the FCPA does not fulfill all of the United States' obligations under the UNCAC because it has not been used against purely private-to-private bribery, which UNCAC Article 21 prohibits.

II. BACKGROUND

A. THE UNITED NATIONS CONVENTION AGAINST CORRUPTION

The UNCAC's wide acceptance illustrates the global acknowledgement of corruption's destructiveness.14 The Ad Hoc Committee that carried out the negotiations for the United Nations Convention Against Transnational Organized Crime, which was adopted on November 15, 2000, was the first to propose the need for a convention specifically addressing corruption.15 Recognizing that corruption posed too complex an issue to be covered exhaustively by a convention dealing with transnational organized crime, the United 14 15 Nations ("UN") eventually established the UNCAC.16 The Convention entered into force on December 14, 2005.17

The Convention has three stated purposes:

(a) To promote and strengthen measures to prevent and combat corruption more efficiently and effectively; (b) To promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery; (c) To promote integrity, accountability and proper management of public affairs and public property. …

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