Transnational bribery: when is extraterritoriality appropriate?

摘要

This paper explores when extraterritorial application of national laws is an appropriate solution to global problems. As a case study, the paper analyzes enforcement of national anti-bribery legislation based on the Anti-Bribery Convention of the Organization for Economic Cooperation and Development (OECD Convention). In recent years, the extraterritorial enforcement of national legislation has increased. The scope of such legislation covers many multinational corporations (MNCs) acting worldwide. While this way of governing MNCs makes it more effective for governments to hold them accountable for a number of global problems they cause, extraterritoriality might serve self-interests of major economies, thus destabilizing markets, principles of international order, and trust among the international community of states. The OECD international anti-bribery regime is an exemplary case to study because some OECD members, such as the U.S., have increasingly been using their anti-bribery laws extraterritorially. Drawing upon the economic and international relations literature, the starting point of the article is that extraterritoriality is appropriate if it serves the main policy goal of the international regulatory regime in which it functions. This article analyzes the main policy goal of the OECD regime, which is based on the principle of competitive neutrality, meaning that all corporations compete on a level playing field. The paper concludes that extraterritoriality is a dynamic phenomenon that is appropriate when used by a small number of major economies in an initial stage of the anti-bribery regulatory framework. In the analyzed case, the increasing anti-bribery enforcement is found to be accompanied by substantive and procedural fragmentation of the underlying legislation that prevents the OECD members from efficiently cooperating, coordinating their actions, and using their full potential to hold MNCs accountable for transnational bribery.