Regulating Corporate Bribery in International Business: Anti-Corruption in the UK and Germany

215 Pages·2014·1.07 MB·English

by  Nicholas Lord

Regulating CoRpoRate BRiBeRy in
inteRnational Business
The significance of Nicholas Lord's book lies in its analysis of the complexities
and dynamics of translating international conventions into domestic legislation
and then implementing them effectively at a country level. In doing so, it brings
to the anti-corruption discourse at both academic and policy-maker levels, a
wider perspective in terms of substantive and evidenced understanding of the
rhetoric and realities of anti-corruption initiatives and agendas within country
contexts.
alan Doig, northumbria university, uK
Nicholas Lord shows in this conceptually innovative and thoroughly researched
comparative study just why efforts to counter transnational corporate bribery -
unquantifiable but assumed to be widespread - rarely get beyond the symbolic.
Encouraging self-regulation and reaching negotiated settlements with offenders
is usually as good as it gets.
peter gill, university of liverpool, uK
This excellent book is that rare thing - a readable and detailed examination of
the dilemmas that contemporary societies - especially the UK and Germany
- face in dealing with corporations operating transnationally in international
commerce that use bribery to win or maintain contracts in overseas
jurisdictions, often poor countries that most NGO campaigns focus on. Nick
Lord persuasively argues that historical traditions have left a contemporary
legacy that complicates international co-operation in prosecuting transnational
and complexly organised corporate crimes. With well researched case studies,
he shows that these historical traditions help us understand the limitations of
criminal sanctioning by sovereign actors as an enforcement mechanism for
controlling illicit corporate behaviour. He thoughtfully broadens out these case
studies to discuss the overlap of regulatory and criminal justice in a context
ignored in most recent work on preventive justice.
Michael levi, Cardiff university, uK
law, Crime and Culture
series editors:
professor susanne Karstedt, university of leeds, uK;
professor Ralf Rogowski, university of Warwick, Coventry, uK; and
professor Dirk tänzler, university of Konstanz, germany
the law, Crime and Culture series explores an increasingly important and
topical area of interdisciplinary research, covering a broad range of themes from
understandings of social and legal order in individual cultures to intersections of
criminological, legal and cultural inquiry. the series promotes cross-disciplinary
and comparative research and the series editors actively welcome submissions on
the many and varied topics related to crime, social control, and legal culture across
the world.
previously published in this series:
the social Construction of Corruption in europe
Edited by Dirk Tänzler, Konstadinos Maras and Angelos Giannakopoulos
978-1-4094-0297-8
Regulating Corporate Bribery in
international Business
anti-corruption in the uK and germany
Nicholas lord
University of Manchester, UK
© nicholas lord 2014
all rights reserved. no part of this publication may be reproduced, stored in a retrieval
system or transmitted in any form or by any means, electronic, mechanical, photocopying,
recording or otherwise without the prior permission of the publisher.
nicholas lord has asserted his right under the Copyright, Designs and patents act, 1988, to
be identified as the author of this work.
published by
ashgate publishing limited ashgate publishing Company
Wey Court east 110 Cherry street
union Road suite 3-1
Farnham Burlington, Vt 05401-3818
surrey, gu9 7pt usa
england
www.ashgate.com
British Library Cataloguing in Publication Data
a catalogue record for this book is available from the British library
The Library of Congress has cataloged the printed edition as follows:
lord, nicholas, author.
Regulating corporate bribery in international business : anti-corruption in the uK and ger-
many / by nicholas lord.
pages cm. – (series: law, crime and culture)
includes bibliographical references and index.
isBn 978-1-4094-7055-7 (hardback) – isBn 978-1-4094-7057-1 (ebook) – isBn 978-1-
4094-7056-4 (epub) 1. Corporations–Corrupt practices–great Britain. 2. Corporations–
Corrupt practices–germany. 3. Bribery–great Britain. 4. Bribery–germany. 5. Corpora-
tions–Corrupt practices–prevention. 6. international trade–Corrupt practices–prevention.
i. title.
KJe8643.l67 2014
345.41’02323–dc23
2014011138
isBn: 9781409470557 (hbk)
isBn: 9781409470571 (ebk – pDF)
isBn: 9781409470564 (ebk – epuB)
V
Contents
List of Figures and Tables vii
List of Abbreviations ix
Acknowledgements xi
1 Introduction 1
2 What is ‘Transnational Corporate Bribery’ and Why Do We
Need to Regulate It? 15
3 Conceptualising the ‘Regulatory’ Framework: Policing as
Regulation 35
4 Legal Frameworks for Enforcement: From the International to
the National 53
5 Enforcing the Law: Structure, Practice and Discretion 81
6 Theories of Enforcement: Prosecution Policies 103
7 Theories of Self-regulation: Manufactured and Organic
Self-regulatory Practices 135
8 Understanding ‘Regulatory’ Performance and Determining
‘Adequate’ Enforcement 163
9 The ‘Default Position’: Accommodating Transnational
Corporate Bribery 179
Bibliography 187
Index 197
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List of Figures and Tables
Figures
3.1 Enforcement and non-enforcement mechanisms in legal and illegal
markets 49
5.1 Key UK anti-corruption agencies 83
5.2 Key German anti-corruption agencies 86
7.1 Conceptualising self-regulatory mechanisms 139
Tables
2.1 Corporate bribery of public and private officials 19
7.1 Self-regulatory mechanisms at the micro-, meso- and macro-levels 142
8.1 Potential data sources at the micro-, meso- and macro-levels 171
8.2 Necessary and contingent relations of transnational corporate
bribery 175
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List of Abbreviations
ABPI Association of the British Pharmaceutical Industry
ACOBA Advisory Committee on Business Appointments
AG Aktiengesellschaft (Public Limited Company) when following
German company name, for example ‘Siemens AG’
BaFin Bundesanstalt für Finanzdiesntleistungsaufsicht (Federal Financial
Supervisory Authority)
CJA Criminal Justice Act
CoE Council of Europe
CPS Crown Prosecution Service
DoJ Department of Justice
DPA Deferred prosecution agreement
EC European Commission
EU European Union
FCPA US Foreign Corrupt Practices Act 1977
FSA Financial Services Authority
FT Financial Times
FTSE Financial Times and London Stock Exchange
GCC German Criminal Code
GRECO Group of States against Corruption
ICC International Chamber of Commerce
MDB Multi-lateral development bank
MLA Mutual Legal Assistance
MNC Multi-national Corporation
MoU Memorandum of Understanding
MP Member of Parliament
NASDAQ originally the National Association of Securities Dealers
Automated Quotations (a US stock exchange)
NCA National Crime Agency