Corruption and hold-up: the role of intermediaries

Corrupt contracts are illegal and, therefore, vulnerable to hold-up. That is, a bureaucrat who has accepted a bribe from a firm in exchange for a license may still choose not to grant the firm that license (hold-up). This paper develops a model to study the role that intermediaries play in preventing hold-up. There are two types of firms, good firms that are legally entitled to receive a license, and harmful firms that are not. Without intermediaries only good firms enter the market, and harmful firms do not enter because of hold-up. Intermediaries are legally permitted to help firms reduce their navigation costs of obtaining licenses. Thus, intermediaries increase entry of good firms. However, by utilizing the legal aspects of their transaction with good firms as leverage against the bureaucrat, intermediaries can prevent hold-up among harmful firms. Thus, intermediaries increase participation by both good and harmful firms and their welfare costs are ambiguous. Data obtained from occurrences of violations of the Foreign Corrupt Practices Act are broadly consistent with our model.     

Mitigating the Harshness of FCPA Enforcement Through a Qualifying Good‐Faith Compliance Defense

In recent years, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have enforced the Foreign Corrupt Practices Act (FCPA) with increasing rigor. These zealous enforcement practices have been criticized for putting excessive pressure on companies to settle, often through nonprosecution or deferred prosecution agreements. The resulting proliferation of such settlements has created a dearth of case law interpreting the statute, resulting in legal ambiguity that reinforces pressures on companies to continue to settle rather than litigate, as uncertainty of the law adds to risk. This dynamic is exacerbated by the broad vicarious liability that firms face for the wrongdoing of individual actors. Given the need for government to enlist business as a partner in any effective battle against global corruption, the current highly adversarial relationship between enforcement agencies and firms is unreasonable and counterproductive. The law and its enforcement agencies should go further in providing incentives for businesses to develop and implement strong good‐faith FCPA compliance programs. They should establish standards for rigorous compliance programs that would provide qualifying companies with a defense against entity liability for the corrupt behavior of individuals. Creation of a qualifying good‐faith compliance program defense would help to prevent future FCPA violations, to recruit companies as partners in fighting corruption, to encourage ethics‐oriented corporate cultures, and to encourage upstanding firms to do business in regimes where rectitude is most needed.     

合规管理：中国内地外资企业的法律工作新动向

近年来,接连爆出一些大公司因商业贿赂问题被管理当局处罚的消息,其中不乏一些国际着名的跨国企业,如西门子因行贿被美国和德国行政当局处罚16亿美元;UT斯达康因行贿被处罚300万美元;美国首屈一指的不干胶标签材料生产商艾利．丹尼森公司因向中国地方官员行贿而被有关机构处以20万美元的民事罚款;     

Performance of functions; claims for compensation under the Energy Employees Occupational Illness Compensation Program Act. Interim final rule; request for comments

This document contains the interim final regulations governing the administration of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or Act) by the Department of Labor (Department or DOL). Part B of the Act provides uniform lump-sum payments and medical benefits to covered employees and, where applicable, to survivors of such employees, of the Department of Energy (DOE), its predecessor agencies and certain of its vendors, contractors and subcontractors. Part B of the Act also provides smaller uniform lump-sum payments and medical benefits to individuals found eligible by the Department of Justice (DOJ) for benefits under section 5 of the Radiation Exposure Compensation Act (RECA) and, where applicable, to their survivors. Part E of the Act provides variable lump-sum payments (based on a worker's permanent impairment and/or years of established wage-loss) and medical benefits for covered DOE contractor employees and, where applicable, provides variable lump-sum payments to survivors of such employees (based on a worker's death due to a covered illness and any years of established wage-loss). Part E of the Act also provides these same payments and benefits to uranium miners, millers and ore transporters covered by section 5 of the RECA and, where applicable, to survivors of such employees. The Office of Workers' Compensation Programs (OWCP) administers the adjudication of claims and the payment of benefits under EEOICPA, with the Department of Health and Human Services (HHS) estimating the amounts of radiation received by employees alleged to have sustained cancer as a result of such exposure and establishing guidelines to be followed by OWCP in determining whether such cancers are at least as likely as not related to employment. Both DOE and DOJ are responsible for notifying potential claimants and for submitting evidence necessary for OWCP's adjudication of claims under EEOICPA.     

中国古代官吏赃罪研究的文献计量分析——以1980年—2006年大陆学者研究为例

在对140篇有关中国古代官吏赃罪研究的论文进行文献计量分析的基础上,本文认为:1980—2006年,中国古代官吏赃罪的研究可分为三个阶段,研究格局与中国古代赃罪立法的"草创—完善—成熟"的历程基本同步;学者对中国古代官吏赃罪的研究质量较高,研究热点出现在惩贪肃贿、法律与制度研究两个领域,这种趋势在2000—2005年之间显得更加明显;中国古代官吏赃罪研究的主要问题在于官吏赃罪的犯罪构成、官吏赃罪涉足的领域、官吏赃罪的犯罪走向及趋势等成为研究中的盲点,对受赃法律的动态的、功能的研究不够,研究视角狭窄,研究资助问题突出。     

Performance of functions; claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended. Final rule

On June 8, 2005, the Department of Labor (DOL) published interim final regulations that govern its responsibilities under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or Act). Part B of the Act provides lump-sum payments of $150,000 and medical benefits to covered employees and, where applicable, to survivors of such employees, of the Department of Energy (DOE), its predecessor agencies and certain of its vendors, contractors and subcontractors. Part B also provides lump-sum payments of $50,000 and medical benefits to individuals found eligible by the Department of Justice (DOJ) for $100,000 under section 5 of the Radiation Exposure Compensation Act (RECA) and, where applicable, to their survivors. Part E of the Act provides variable lump-sum payments (based on a worker's permanent impairment and/or calendar years of qualifying wage-loss) and medical benefits for covered DOE contractor employees and, where applicable, provides variable lump-sum payments to survivors of such employees (based on a worker's death due to a covered illness and any calendar years of qualifying wage-loss). Part E also provides these same payments and benefits to uranium miners, millers and ore transporters covered by section 5 of RECA and, where applicable, to survivors of such employees. At the same time the Department published the interim final regulations, it also invited written comments and advice from interested parties regarding possible changes to those regulations. This document amends the interim final regulations based on comments that the Department received.     

Scrutinizing RICO

Past studies on the Racketeering Influenced and Corrupt Organizations Act (criminal RICO) are merged with research on organized crime and recently collected information on the presence of informants in appellate cases. After identifying problems associated with the statute since its enactment in 1970, attention is directed toward the place of informants within court proceedings applying criminal RICO. The central finding points to a relatively high presence of informants in such cases. The explanation that follows accounts for the prevalence of informants in RICO cases by combining: (1) the statutes liberal construction, (2) an increasing acceptance amongst government and law-enforcement officials that the use of informants is essential to the fight against the apparent organized crime threat, and (3) the rationalization that extends from the prosecutorial success that has been documented within the United States and in other countries that have adopted similar forms of legislation.We would like to thank Pierre Tremblay and Marie-Andrée Bertrand for their comments and suggestions on past versions of this paper. We also show our gratitude to Gerard Lynch for his help during early phases of this research.     

商业贿赂犯罪的刑事实体法完善

商业贿赂犯罪不是一个确定的罪名,而是对应我国刑法中多个罪名。这样的立法符合国情,也符合《联合国反腐败公约》的精神。但在罪名体系、罪状设定、刑罚设定和犯罪形态等问题上需要借鉴该公约的内容进行完善。具体应增设外国公职人员和国际公共组织官员贿赂犯罪,适当扩大贿赂的范围,取消"为他人谋取利益"要件、"谋取不正当利益"要件,罚金刑的数额应当更加合理,取消贿赂犯罪的死刑,并增设资格刑种。     

Patient Protection and Affordable Care Act; standards related to reinsurance, risk corridors, and risk adjustment. Final rule

This final rule implements standards for States related to reinsurance and risk adjustment, and for health insurance issuers related to reinsurance, risk corridors, and risk adjustment consistent with title I of the Patient Protection and Affordable Care Act as amended by the Health Care and Education Reconciliation Act of 2010, referred to collectively as the Affordable Care Act. These programs will mitigate the impact of potential adverse selection and stabilize premiums in the individual and small group markets as insurance reforms and the Affordable Insurance Exchanges ("Exchanges") are implemented, starting in 2014. The transitional State-based reinsurance program serves to reduce uncertainty by sharing risk in the individual market through making payments for high claims costs for enrollees. The temporary Federally administered risk corridors program serves to protect against uncertainty in rate setting by qualified health plans sharing risk in losses and gains with the Federal government. The permanent State-based risk adjustment program provides payments to health insurance issuers that disproportionately attract high-risk populations (such as individuals with chronic conditions).     

VA homeless providers grant and per diem program--VA. Final rule

We are, with changes, adopting as a final rule the provisions of an interim final rule promulgated pursuant to The Homeless Veterans Comprehensive Service Programs Act of 1992. The Act authorizes the Department of Veterans Affairs to assist public or nonprofit private entities in establishing new programs to furnish supportive services and supportive housing for homeless veterans through grants. The Act also authorizes VA to provide per diem payments, or in-kind assistance in lieu of per diem payments, to eligible entities that established programs after November 10, 1992 that provide supportive services or supportive housing for homeless veterans, or service centers providing supportive services. This rule contains criteria and requirements relating to the awarding of grants and relating to per diem payments. Accordingly, this rule is necessary so that grants can be awarded and per diem payments can be made.     

Corruption in a non-corrupt country: what does corruption look like in Finland?

ABSTRACT

Finland is usually considered a country where corruption is rare, and this impression is reinforced by the good results that it has achieved in Transparency International’s Corruption Perceptions Index (CPI). The present study describes and assesses Finnish bribery legislation, as well as a number of recent judgments handed down by Finnish courts. The legislation is quite fragmented, consisting of some nine sections in three different chapters of the Criminal Code. The bribery cases heard by the Supreme Court mainly deal with quite small-scale bribery, such as where a public official has accepted restaurant services, trips or other benefits from private companies. However, in the last few years, the courts have also had to consider some larger-scale instances of bribery, where persons working for Finnish companies have been suspected of bribing foreign public officials. The article also takes up match-fixing and election funding and their connections to bribery.     

The Purchase of Insurance Across State Lines in the Individual Market

Proposals to allow the purchase of insurance across state lines (PASL) have gained some support in recent years. Health insurers have traditionally been allowed to sell a policy only within the state that approved and regulates that particular policy. PASL would allow insurers to sell a policy approved in one state to people residing in any state. Any federal legislation to enact PASL in an individual insurance market would have to address two main legal considerations: (1) the McCarran-Ferguson Act, which allows the states to retain their regulatory authority over insurance; and (2) a constitutional prohibition against the commandeering of state officials by the federal government. This paper outlines these obstacles and potential solutions, and concludes that as long as the legislation is thoughtfully drafted, there is no significant legal or constitutional barrier to enacting PASL. Additionally, the concepts discussed here may be relevant to any federal health reform legislation involving regulation of health insurance or the use of state officials.     

论我国贿赂犯罪的立法对《联合国反腐败公约》的应对--以国际刑法的国内化为视角

在我国缔约的<联合国反腐败公约>中,贿赂犯罪的规定与我国现行刑法的规定是不同的.现行刑法与<联合国反腐败公约>的相关规定的差异主要表现在贿赂的范围、贿赂外国公职人员或者国际公共组织官员犯罪与受贿罪、行贿罪的构成要件三个方面.完善相应的现行刑法的规定,是我国必须履行的国际法义务,也是司法实践的需要.     

Fraud,Free Speech and Fossil Fuel: Lessons from Big Tobacco for Big Oil

Recent journalistic investigations revealed that ExxonMobil carried out research beginning in the 1970s indicating fossil fuel's dangerous role in global warming. Rather than heed the warnings of its research, for the next few decades, ExxonMobil instead chose to become a leader in climate change denial; stressing uncertainty, propagating misinformation, funding denial, and politicizing and undermining the expert scientific consensus. Exxon's behavior invoked the tactics used by the tobacco industry years earlier, tactics which wound up the subject of a successful federal government lawsuit under the Racketeer Influenced and Corrupt Organizations (RICO) Act. The parallels with the tobacco industry prompted legislators and environmentalists to call on the Department of Justice to use RICO again to hold the fossil fuel industry to account. This article will consider the legal issues associated with bringing such an action, and whether useful lessons can be drawn from the tobacco litigation.     

How has the private sector reacted to the international standard against transnational bribery? Evidence from corporate anticorruption compliance programs in Argentina

In the last 20 years, the risks of bribing foreign public officials have greatly increased for multinational companies based in OECD countries and those listed on their stock markets. Generally, these risks can be mitigated through corporate compliance programs. Such compliance programs are directed at reducing bribery and other unethical behavior in the private sector. This paper assesses how the international standard against transnational bribery has impacted anticorruption compliance programs in Argentina. It first traces the origins and logics behind corporate anticorruption compliance. It later describes the international standard against transnational bribery and, in the light of information collected through 16 in-depth interviews and a survey conducted among 70 companies based in Argentina, it assesses how corporate anticorruption programs work in this country. After distinguishing between “paper”, “cheap-talk” ideal-type programs and sound, truly committed ideal-type policies, it suggests that anticorruption compliance in Argentina is placed closer to the former than the latter, and it offers possible reasons for such findings.     

Understanding transnational bribery: a corporate crime framework

Despite calls for utilizing white-collar and corporate crime frameworks to study corruption, the role of corporations in supplying bribes to foreign government officials is not well understood. In the current study, we draw upon a recent framework designed to examine the transnational corporate bribery process from an opportunity theory perspective. We apply the framework to a sample of individuals and organizations with enforcement actions levied against them by the United States Department of Justice’s Fraud Section for violations of the Foreign Corrupt Practices Act of 1977 between 2011 and 2016. Using an exploratory mixed methods approach, we assess the prevalence and qualitative nature of multiple components of the framework. Our goal is to develop a systematic way to apply it to different sets of bribery data and to move toward a fuller theoretical account of transnational corporate bribery. Our findings demonstrate the significance of the corporate role in foreign bribery, the utility of the bribery process framework, and some areas of refinement and future theoretical development.

     

从Petrobras案看美国《反海外腐败法》的域外管辖问题

Petrobras案反映了美国《反海外腐败法》(FCPA)的域外管辖权存在合理性的问题。通过回顾该法的立法历史和研究其条款的规定,分析FCPA针对外国公司的典型案例,表明美国FCPA执法机构宽泛地解释法律,借助微弱的连接点,扩大FCPA域外管辖权的行使范围。这既与美国国内法和司法实践中确定行使域外管辖权的合理性平衡检验标准不一致,同时也不符合《经合组织公约》和习惯国际法规则的要求。究其实质,美国《反海外腐败法》一方面为国际社会治理跨国贿赂提供了国际公共产品,另一方面也在维护了美国和美国公司的利益,收取额外的霸权收益。     

International Payoffs: Profits and Morality

Two years have passed since the Foreign Corrupt Practices Act was enacted by the U.S. Congress in 1977. Congressional intent was to sustain international confidence in U.S. business and institutions. However, ambiguities of the Act and the absence of international antibribery treaties led many U.S. businessmen to conclude that the Act put U.S. multinationals at a disadvantage in competing with foreign multinationals. This paper attempts: (1) to review the background of the Act, (2) to describe the major elements of the Act, and (3) to assess the effect of the Act on U.S. multinational companies.     

The FCPA and analogous foreign anti-bribery laws overview, recent developments, and acquisition due diligence

The first 150 words of the full text of this article appear below. Key points

• Securities regulators and law enforcement authoritiesare increasingly active in the application of anti-bribery lawsin the global environment. This renewed emphasis on rootingout transnational corruption has substantial implications forparticipants in the global capital markets engaged in cross-bordermergers and acquisitions.
• More than ever, there is a risk thattransactions improperly structured or subjected to inadequatedue diligence may result in unexpected criminal or civil liabilitiesof unprecedented scope and severity.
• This article is intendedas a brief primer on the essentials of the Foreign Corrupt PracticesAct a summary of the most current global developments in globalanti-bribery enforcement, and basic guidance on the due diligenceefforts that prudent participants in a cross-border transactionshould consider.