Intimations of Global Anti-Bribery Regime and the Effectiveness of Extraterritorial Enforcement : From Free-Riders to Protectionism?

One topic has featured in discussions of bribery of foreign public officials over the last few years – the rise of the broad extraterritorial use of national anti-bribery laws (based on the OECD Anti-Bribery Convention) which might reach domestic or foreign companies anywhere in the world. The problem is that extraterritoriality pushes or even exceeds traditional principles of public international law which may both support and undermine the core values of the international order. In this context, it is still unknown how and to what extent this practice is effective; i.e. whether positive effects of extraterritoriality outweigh negative effects. This paper aims to develop an outline of the effectiveness model of the OECD anti-bribery enforcement regime. It builds on existing theoretical concepts which assess effectiveness of global prohibition regimes. The analysis reveals that on the one hand extraterritoriality has positive effects because the anti-bribery laws are applicable to a widening range of foreign firms coming from jurisdictions where transnational bribery is under-regulated or even not criminalized at all. It can be concluded that increasing number of directly subjected firms, as consequence of the U.S. enforcement leadership, has been reducing the incentives to bribe for any other firm. This is because of indirect effects of these laws on private contractual arrangements which de facto create private implementation processes connected with community enforcement. Consequently, this dynamics also creates incentives for non-enforcers to become active. However, national enforcement authorities often use enforcement strategically to offer domestic companies a competitive edge. Thus, as the OECD anti-bribery regime lacks an enforcement mechanism, extraterritoriality often results in multiple uncoordinated investigations and therefore undermines stability of the anti-bribery enforcement. Extraterritoriality in the context of transnational bribery is a new phenomenon. The paper focuses on anti-bribery law, but much of it also relates to lager issues concerning the role of extraterritoriality in legal and economic globalization and in the evolution of public international law. The paper presents implications for further empirical and doctrinal research