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Friday
Jan252013

Cooperation and competition among enforcing countries

New scholarship from Elizabeth Spahn tackles the opportunities and risks behind the new trend of multi-national antibribery enforcement.

It's a topic crucial to nations joining the war against graft. And it's no less important to anyone facing the threat of enforcement by two or more countries.

Spahn is a distinguished professor of law at New England Law | Boston. She's also a contributing editor of the FCPA Blog.

Her 52-page article (with 265 footnotes) grew out of last year's Spring Symposium hosted by the Virginia Journal of International Law at UVa's law school in Charlottesville. How to resolve conflicts between U.S. and foreign laws was the topic, including what happens when more than one country tries to enforce their anti corruption laws against the same defendant.

Prof Spahn uses the framework of the OECD Antibribery Convention to examine familiar FCPA-related cases -- BAE, Siemens, and the TSKJ actions.

They're a harbinger of things to come. As she says, the OECD countries involved -- the U.S., U.K., France, Italy, and Switzerland -- displayed both 'cooperation and competition in prosecuting powerful multi-national corporations.'

Coordination enhances antibribery coverage. But there are always risks of forum shopping, 'sanctions arbitrages,' and even 'sweetheart prosecutions,' where a country imposes a small criminal fine on a favored local company to prevent other OECD Convention members from stepping in.

Spahn's special skill is pulling back the curtain on familiar enforcement actions to show us something new. She describes the Innospec cases, for example, as 'highly coordinated' by the U.S. and U.K. Then she reveals enforcement competition on display when a U.K. judge publicly criticized as 'wholly inadequate' the financial penalties imposed by U.S. agencies.

This is the best scholarship to date about dividing the labor and spoils of global antibribery enforcement. And it's a glimpse into two contrasting futures: one with coordinated prosecutorial decisions and another of helter skelter enforcement competition.

__________

See Spahn, Elizabeth, Multi-Jurisdictional Bribery Law Enforcement: The OECD Anti-Bribery Convention (March 15, 2012). Virginia Journal of International Law, Vol. 53, No. 1, 2012. Available in pdf here or here.

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