The Supply-side of Bribery in International Business Transactions: Experiences, Criticism and Possibilities

Abstract: This thesis takes its starting point in the criminal offence of bribery in international business transactions. While the relating issues pertaining to the surrounding international business environment are overwhelmingly complex and numerous, the supply-side view presented focuses on questions less related to a political will to conduct massive and costly public sector reforms. In the light of one of the few successful anti-corruption campaigns in the world, the Hong Kong anti-corruption campaign, five features of that campaign relevant to the supply-side are explored concerning experiences, criticism and possibilities in relation to individual behaviour, the object of criminal law. They are education, media, investigative instruments, business community efforts, and offences and sanctions. The general conclusion is that the requirements of the OECD Convention and the Revised Recommendations are this far not particularly directed towards any active preventive measures and towards adapting traditional crime prevention measures to the specifics of bribery as done in Hong Kong. Specific conclusions are, firstly, that moral as well as general anti-corruption education seems necessary as a preventive measure considering its relation to individual beliefs. ''Reintegrative shame'' seems a suitable preventive method in smaller moral groups. Secondly, mass media can not be expected to convey the detrimental effects of bribery in international transactions unless authorities present criminal cases to mass media with its dramatic consequences to individuals. Thirdly, reversing the onus of proof for evidential facts in corruption related offences seems a much needed measure in order to improve the efficiency of the prosecution without giving up on protected limits of human rights. Fourthly, in environments of endemic corruption, requirements on foreign corporations to organise in business associations for the purpose of improving competition and prevent corruption seems to be a solution favoured by governments, corporations and civil society. Fifthly, sanctions need to be focused on individual impact and the learning capability of corporations and individuals. Corporate fines seem particularly insufficient to elicit any betterment and efficient prevention, not least due to the simple risk preventive measure of corporate insurance. Instead, the impact need to be on managerial power, prestige and corporate reputation. However, as a prerequisite for such sanctions, corporate accountability has to be extended beyond the thresholds of directing minds or the involvement of senior management in the commission of the offence or they risk being left useless. Finally, a disciplinary/regulatory strategy which economises on motivation may hold a solution to the problem of non-compliance regardless of the motives behind it. Compliance with preventive regulations is optimised when it is contingently co-operative, tough and forgiving.