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One of the main challenges in the fight against bribery and corruption in international trade is the lack of a uniform legal framework that can effectively address the complex and multifaceted nature of this phenomenon. Different countries have different laws, regulations, standards, and practices that govern their anti-corruption efforts, which may create inconsistencies, loopholes, conflicts, and uncertainties for businesses and individuals involved in cross-border transactions. Moreover, the enforcement of anti-corruption laws may vary depending on the political, economic, social, and cultural context of each country, as well as the level of cooperation and coordination among national and international authorities. Therefore, it is important to understand the legal framework surrounding anti-corruption efforts and how it can be improved and harmonized to ensure a fair and transparent global trade environment.
Some of the key aspects of the legal framework surrounding anti-corruption efforts are:
1. The international conventions and agreements that aim to establish common principles and standards for preventing and combating bribery and corruption in international trade. Some of the most relevant ones are:
- The United Nations Convention against Corruption (UNCAC), which is the first global and comprehensive anti-corruption treaty that covers a wide range of issues, such as prevention, criminalization, international cooperation, asset recovery, and technical assistance. It has 189 parties as of November 2023.
- The OECD Convention on Combating Bribery of Foreign Public Officials in international Business transactions, which is the first and only international anti-bribery convention focused on the supply side of corruption, i.e., the criminalization of the act of bribing a foreign public official. It has 44 parties as of November 2023.
- The African Union Convention on Preventing and Combating Corruption, which is the first regional anti-corruption treaty that covers both the public and private sectors, as well as the civil society and the media. It has 43 parties as of November 2023.
- The Inter-American Convention against Corruption, which is the first regional anti-corruption treaty that covers both the public and private sectors, as well as the civil society and the media. It has 35 parties as of November 2023.
2. The national laws and regulations that implement and enforce the international conventions and agreements, as well as address the specific needs and challenges of each country in terms of anti-corruption. Some of the most notable ones are:
- The Foreign Corrupt Practices Act (FCPA) of the United States, which is one of the oldest and most influential anti-bribery laws in the world. It prohibits U.S. Persons and entities from bribing foreign public officials to obtain or retain business, and requires them to keep accurate books and records and maintain internal controls. It also applies to foreign persons and entities that act in furtherance of a corrupt payment while in the U.S. Territory. It has been enforced vigorously by the U.S. Department of Justice (DOJ) and the securities and Exchange commission (SEC), resulting in numerous investigations, prosecutions, and settlements involving both U.S. And foreign companies and individuals.
- The UK Bribery Act 2010 of the United Kingdom, which is one of the most comprehensive and strict anti-bribery laws in the world. It prohibits both active and passive bribery, as well as bribery of foreign public officials and private persons, by any person or entity with a close connection to the UK. It also introduces a new corporate offense of failing to prevent bribery, which can be avoided by having adequate procedures in place. It has been enforced by the Serious Fraud Office (SFO) and the Crown Prosecution Service (CPS), resulting in several investigations, prosecutions, and settlements involving both UK and foreign companies and individuals.
- The Anti-Unfair Competition Law (AUCL) of China, which is one of the most recent and significant anti-bribery laws in the world. It prohibits both active and passive bribery, as well as bribery of foreign public officials and private persons, by any person or entity that engages in business activities in China. It also imposes administrative penalties, such as fines, confiscation of illegal gains, revocation of business licenses, and blacklisting, on the briber, the bribee, and the intermediary. It has been enforced by the State Administration for Market Regulation (SAMR) and other relevant authorities, resulting in several investigations, prosecutions, and sanctions involving both Chinese and foreign companies and individuals.
3. The best practices and guidelines that provide practical and ethical guidance for businesses and individuals to prevent and detect bribery and corruption in international trade. Some of the most useful ones are:
- The ICC Guidelines on Agents, Intermediaries and Other Third Parties, which are developed by the International Chamber of Commerce (ICC) to help businesses manage the risks associated with the use of third parties in international transactions. They cover topics such as due diligence, contracts, payments, monitoring, and reporting.
- The ICC Anti-corruption Clause, which is a model contractual provision that can be used by businesses to express their commitment to comply with anti-corruption laws and regulations, and to require their contractual partners to do the same. It also provides for remedies in case of breach, such as termination, indemnification, and arbitration.
- The ICC Ethics and Compliance Training Handbook, which is a practical tool that can be used by businesses to design and implement effective ethics and compliance training programs for their employees and third parties. It covers topics such as risk assessment, content development, delivery methods, evaluation, and improvement.
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