In recent decades, both in international law and in the national legislation of states, there has been a clear tendency to adopt new standards to strengthen the fight against corruption. The OECD Convention on the fight against bribery of foreign officials in the implementation of international commercial transactions in 1997 entered into force on February 15, 1999. This convention is an exciting example of the interaction between international and domestic law. A great influence on the adoption of the convention had a current position in the United States. In 1977, the United States passed the Law on Combating the Practice of Foreign Corruption (Castles, 2000). This prohibits American companies from giving bribes to foreign officials to create or maintain a business in foreign countries or to obtain any unreasonable advantages in doing business and establishing the liability of companies and individuals for relevant acts. As a result, in countries with a high level of corruption, US companies were in obviously worse conditions compared to other foreign companies that could give bribes to promote the business.
In an effort to ensure equal competition among American companies in foreign markets, the US government initiated the development and adoption of an OECD convention prohibiting bribery of foreign officials. Other member states and the OECD supported the idea of adopting a convention. After that, in 1998, the USA adopted amendments to the Law on Combating the Practice of Foreign Corruption, which extended its effect to acts of foreign citizens and organizations committed in the USA (Castles, 2000). Thus, US national legislation influenced the emergence of new international law aimed at combating corruption, and then the new convention influenced the further development of American law.
In accordance with Article 1 of the Convention, the participating States are obligated to take the necessary measures to recognize as a criminal offense intentional offer, promise, or provision by any person directly or through intermediaries of any unlawful property or other advantages to a foreign official. In favor of such an official or third party so that the official commits an act or omission in the performance of their duties to obtain or maintain a commercial or another undue advantage in connection with an international commercial transaction. States have also committed to criminalizing complicity in the commission of these crimes, including responsibility for authorizing the bribery of a foreign official. An official OECD commentary on the convention states that as an offense under Article 1, insignificant incentive payments to public servants for the performance of their usual functions on time (facilitation payments) (Ledeneva, 2013). The criminalization of such acts is left to the discretion of States.
The convention gives a fairly broad definition of “foreign official,” covering any persons holding an appointed or elected position in the legislative, executive, or judicial branch of a foreign court, performing public functions for a foreign court. This includes state body, enterprise, or institution, as well as any official persons or representatives of international organizations. From the influence on the further development of the anti-corruption legislation of the states, the provisions of the convention, concerning the jurisdiction and liability of legal entities, are of primary interest.
The Convention provides for the obligation of states to establish not only the responsibility of individuals but also the responsibility of legal entities in whose interests foreign officials are bribed. The question of whether companies should be held criminally, administratively, or civilly liable is left to the discretion of states and is decided based on their legal system and traditions. The implementation of the provisions of the Convention on the Liability of Legal Entities in the national legislation of the states entailed the emergence and development of anti-corruption compliance control in companies in order to prevent corruption crimes. The legislation of a number of states has introduced provisions providing for the possibility of protecting a company from liability in the event of adequate anti-corruption policies and procedures.
The states parties to the convention pledged to establish territorial jurisdiction and personal jurisdiction concerning the bribery of foreign officials by their citizens abroad. According to the provision of Part 1 of Article 4 of the Convention, that states should take all necessary measures to establish territorial jurisdiction in relation to bribery of a foreign official if the act is committed in whole or in part on its territory. In US law and jurisprudence, “partial commission of an act” in the United States as a basis for American jurisdiction has been widely interpreted. The law includes, for example, negotiating in the United States, or using correspondent accounts with US banks in settlements.
Traditionally, the main directions of the fight against corruption have been the criminalization of relevant acts, as well as the creation of various mechanisms for monitoring the activities of state and municipal employees. This impedes their involvement in the commission of corruption crimes. With the adoption of the convention, a new direction in the fight against corruption, the prevention of corruption at the company level by creating a system of anti-corruption compliance control, gradually developed.
Due to the significant impact that the laws of the United Kingdom and the United States have established foreign companies and the development of anti-corruption compliance control. It is interesting to consider the implementation of the OECD Convention on the example of these states.
According to the UK Law on Bribery, the listing of a company’s shares on the London Stock Exchange alone is not sufficient to recognize a company as an entity having a relationship with the United Kingdom and required to comply with the requirements of this law (Ledeneva, 2013). US law applies to any company whose securities are listed in the United States. US law may apply to individuals acting on behalf of a company, whether they are US citizens and their corrupt practices have anything to do with the US.
The United States Foreign Corrupt Practices Act may apply to foreign companies in the following cases. First, a foreign company is an issuer of securities that are quoted in the United States and uses mail or any means or instruments of cross-border trade to make corruption payments. Secondly, a foreign company carries out certain actions in the United States related to the bribery of a foreign public official.
US courts can interpret the implementation in the United States of certain actions related to the commission of a corruption offense quite widely. A case in point is the case of the Hewlett- Packard Company and its subsidiaries in Mexico, Poland, and Russia, which resulted in April 2014 that the company and three affiliates entered into a pre-trial agreement with the US Department of Justice (Marquette & Pfeiffer, 2015). They agreed to collectively pay fines to the U.S. budget of more than 108 million dollars for violating the requirements of the Law on Combating the Practice of Foreign Corruption. The connection between the criminal acts of employees of the Russian branch of the company and the United States was that the manager of the branch held talks in 2001 with some participants in the corruption scheme in Maryland.
As evidence of the use of cross-border trade funds and instruments related to the United States, for example, a foreign telephone call to someone in the United States can be used. According to the researchers, the approach of the US authorities to the interpretation of the relationship of crime with the USA in cases against Siemens and Halliburton seems quite controversial. Contact with the United States was that the calculations were carried out in US dollars and using correspondent accounts with US banks. However, the defense of the companies agreed with the prosecution.
The US Foreign Corrupt Practices Act provides for companies to be held criminally and civilly liable for corruption. N and the legal entity may be fined up to 2 million. Dollars, and is also responsible for Yazan for damages. An individual may be sentenced to imprisonment for up to 5 years or a fine of up to 100 thousand dollars. Moreover, the company, the employee of which this person is, does not have the right to pay a fine for him.
Based on the results of the study, several conclusions can be made. Both the United Kingdom and the United States have fully implemented the OECD Convention in their national anti-corruption laws. The UK Bribery Act is more stringent. By criminalizing bribery between business partners and prohibiting any insignificant payments to officials, the British legislator has stepped outside the OECD Convention. In our opinion, these standards may be further included in the OECD Convention in the event of a decision by states on the need to revise it. British lawmakers have managed to create a reasonably effective incentive system for both British and foreign companies to introduce anti-corruption compliance control. A study conducted by Marquette and Pfeiffer (2015) shows that the laws of the United Kingdom and the United States have a significant impact on the development of anti-corruption laws of other states. In the period 2012 – 2014, norms were establishing the responsibility of companies and stimulating the creation of an anti-corruption compliance control system that appeared in the legislation of Brazil and Russia. Given the broad scope of anti-corruption law in the UK and the USA, their basic requirements should be taken into account by foreign countries.
*Corruption Prevention Approaches*
There is a strong international consensus that corruption cannot be dealt with only through repressive actions, and a variety of measures are needed to eradicate conditions that lead to the occurrence of corruption. Currently, warning items corruption and public awareness are firmly anchored in international standards.
Council of Europe document “On the twenty principles of the fight against corruption” (Guidelines) begins with the provision that: effective measures to prevent corruption and, in this regard, raise public understanding and promotion of ethical behavior.” It also contains several other provisions of a preventive nature (Bales, 2003). For example, Principle 9 provides that “an organization, functioning, and decision-making by public administrations taking into account the need to fight corruption, in particular, guaranteeing transparency compatible with the need for efficiency.” Corruption idea prevention by increasing public awareness and promotion of ethical values is part of the argument underlying the Committee’s Recommendation on a Code of Conduct for Government officials.
OECD Convention on Combating Bribery of Foreign Officials under international business transactions (OECD Convention for the Suppression of bribery) was supplemented by a Recommendation to further combat bribery foreign officials in the implementation of international commercial deals, which also emphasize the particular importance of enhancing public awareness and prevention of corruption.
First of all, the structure of the main international standard – UNCAC – reflected in the fact that this report is divided into corruption prevention measures (Chapter II), criminalization and law enforcement (Chapter iii), and other measures, such as provisions related to international cooperation. Meanwhile, the development of international standards continues to be mandatory and advisory. For example, on December 5, 2014, The OSCE Ministerial Council adopted Decision No. 5/14 “Prevention corruption,” supporting the development and implementation of a wide range of measures to the prevention of corruption in 57 States Parties.
Corruption is a serious problem because it implies a sacrifice of the general interest for the sake of private interests. Williams (2003) points out that in a democratic society there are very few opportunities for corruption when the rules are precise, and there is no margin for personal discretion; on the contrary, it emerges “when a person who is in a position to make decisions, he has unlimited authority.” The bureaucracy in charge of monitoring immigration is subject to strict rules that the discretion of public officials is reduced. However, the problem of corruption in this area has a universal scope. Different studies agree that in the United States Corruption levels are lower than in other countries. Kara (2009), in a study on sex trafficking, highlights the high levels of corruption of immigration authorities worldwide says that “the law enforcement in the United States is relatively less corrupt than in many Eastern European countries or in Asian nations.”
Williams (2003) states that corruption is a global problem, although in countries like Nigeria is endemic, in others like the United States, Great Britain, France, Greece, Japan, or Italy exists on several levels. Bales and Lize (2005) state that in the United States, human trafficking can be reduced because “it does not suffer from internal corruption or lack of resources that face other countries.” However, ” US law enforcement authorities do not collaborate with coyotes do not tolerate them.”
This does not mean that the authorities that monitor compliance with the Immigration law in the United States is not corrupt. Two decades ago the Immigration and Naturalization Service, whose functions were transferred to Department of Homeland Security in 2003, had already been designated as the most vulnerable government agency to fall into corruption. Besides, there is a rapid expansion of corruption cases within the Bureau of Customs and Border Protection (CBP) during the last decade of the twentieth century. The Bureau of Immigration and Customs Control (ice) has recognized that there are cases of corruption, but he has insisted that it is “few corrupt federal agents.”
The etiology of irregular migration: social capital or corruption from the nineties of the last century, the United States adopted the strategy called “prevention through deterrence,” consistent in a strengthening of border control with more patrols. With the construction of more walls and fences and with the acquisition of military technology to detect and stop the flow of migrants (magnetic foot detectors, infrared body sensors, and photo identification systems). The objective of this strategy, in line with economic theory neoclassical that explains emigration, is a guided individual decision by a calculation of costs and benefits. It was to discourage the surreptitious migration raising the cost of entering the United States through an increase in the probability of being apprehended.
Nevertheless, this strategy failed to contain illegal immigration or increase the percentage of arrests. The probability of apprehension decreased during the nineties, it rose between 2001 and 2006 but declined again in 2011 when the probability of a migrant being apprehended while trying to cross the border was at the lowest level since 1965 (Rosenblum, 2012). The paradox of the association between an increase in surveillance of the border and a reduction in the probability of being intercepted upon irregular entry, the United States has been explained through two mechanisms: social capital and corruption.
Social capital refers to the connections between individuals, based on kinship, or friendship, which favor access to economic goods and the information necessary to overcome obstacles that make crossing the border difficult. The strengthening and social capital expansion facilitates and encourages migration and turns migratory movements into self-sustained social processes, which are self-perpetuating through social networks (Massey, 2004). Massey (2004) emphasizes, “the flows migrants acquire a strong internal momentum that makes them resistant to easy manipulation by public policies.” They further underline that due to the social capital accumulated by migrants, surreptitious migration cannot stop despite all the measures that a government implements.
Massey (2004) talks about the farce of border control because “It has had less to do with detaining undocumented immigrants than with pushing them towards remote sectors of the border, where no one will see or hear them” (p. 120). They describe the dysfunctional control policy border as “the worst of all possible worlds” (p. 157) because it has increased risks of emigration: physical damage and death (p. 127), has deteriorated working conditions (p. 136) and reduced probability of return (p. 145), without an increase in the probability of arrests (p. 129). Likewise, the share capital allows avoiding greater surveillance of the border by providing migrants with the information and financial resources necessary to hire the “polleros” services, whose number would have expanded proportionally to the increase in the number of Border Patrol agents (Durand & Massey, 2009).
References
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