Book Description

Anti-bribery enforcement by many different nations increased significantly in the decade since the OECD Anti-Bribery Convention became effective. The Convention, which prohibits bribes to foreign officials to obtain business, is the central legal instrument governing modern anti-bribery efforts in multi-jurisdictional business transactions with 38 signatories from nearly all the wealthiest nations. The OECD Anti-Bribery Convention specifically protects local sovereigns from foreign interference in its internal affairs through the local law provisions which provide that payments permitted or required under the written local laws of the receiving official's sovereign do not constitute illegal bribes under the Convention. Local law provisions are also centrally important for modern corporate compliance legal advice, as global traders seek safer avenues for developing relationships with local officials abroad through legally permitted gifts and hospitality. Harmonizing local law provisions under the Convention involves three major issues. First, reliance on unwritten local customs is explicitly excluded under the Convention. Second, distinguishing between true extortion and mere threats to business advantage is of increasing importance as Russia joins the Convention. Third, the scope of "effective regret" voluntary reporting defenses in the local laws of some nations needs to be harmonized with the Convention. Although several of the 38 current signatories have local law provisions in their domestic implementing laws, only one case has interpreted these provisions to date. In U.S. v. Kozeny (Bourke), a U.S. court adopted a construction of the local law defense which places the U.S. Foreign Corrupt Practices Act in conformity with the OECD Anti-Bribery Convention Commentaries 7 and 8. Two contrasting models of written local laws regulating relationships between foreign traders and local officials are found in the examples of Japan and Hong Kong. Japan provides a graphic user-friendly website with clear, specific regulations regarding gifts and hospitality to its officials. Hong Kong, ranked #1 Free-est from Corruption for 17 straight years by conservative think tank Heritage Foundation, has a modern agency which provides specific rulings regarding acceptable gifts and hospitality within two working days. Increasingly important local law provisions regarding permitted gifts and hospitality generates market demand for dual admission lawyers competent in the laws of multiple jurisdictions, as well as providing an opportunity for local discussions about appropriate relations between local officials and global traders. Local law provisions place the tax, securities and criminal law strength of wealthier nations' legal systems behind the development of more predictable written law in higher risk jurisdictions. The OECD Anti-Bribery Convention ensures that wealthier nations' global traders do not interfere in other sovereigns' internal affairs through bribery in violation of that sovereign's laws. Local law provisions enforce genuine mutual respect among sovereigns while providing global traders a safer path to developing economies.