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The Global Collaboration against Transnational Corruption - Motives, Hurdles, and Solutions
Lianlian Liu
Verlag Palgrave Macmillan, 2018
ISBN 9789811311383 , 285 Seiten
Format PDF, OL
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The Global Collaboration against Transnational Corruption - Motives, Hurdles, and Solutions
Contents
5
List of Figures
11
Chapter 1: The Topic, Methodology, and Potential Contribution
12
1 The Current Topic for Transnational Bribery Regulation Analysis
12
2 The Formation of the Problem-Solving Paradigm
16
2.1 Phase 1: Academic Insights to the Wisdom of the FCPA Approach
17
2.1.1 Ideology-Shaped Perspectives
17
2.1.2 Two Interpretative Models: The Bribery-Centric Model and the Regulation-Centric Model
20
The Bribery-Centric Model
20
The Regulation-Centric Model
23
2.1.3 Interim Summary: A Common Ground—The Political-Will Assumption
26
2.2 Phase 2: From Academic Insights to Public Beliefs
28
2.2.1 Imperfect Explanations
28
2.2.2 The Public’s Acceptance of “Imperfect Explanations”
29
The First Determinant: The Explanation Should Reflect Social Values
29
The Second Determinant: The “Disposition to Act”
30
2.2.3 Bribery-Centric and Regulation-Centric Explanations: Irreconcilable Models with the Same “Disposition to Act”
31
2.3 Phase 3: From Public Beliefs to Preconceptions of Convention Enforcement
32
2.3.1 Two Indicators of Convention Enforcement: Lawmaking and Law Enforcement
33
Lawmaking: A Remarkable Success
33
Law Enforcement: An Unquantifiable Indictor
34
2.3.2 Two Labels for Convention Enforcement: “Effective” and “Ineffective”
35
The Label of “Effective Enforcement”
35
The Label of “Ineffective Enforcement”
35
2.3.3 Preconceptions Accounting for the Popularity of the Label of “Ineffective Enforcement”
37
2.4 Phase 4: The Formation of the Problem-Solving Paradigm
38
3 Structural Flaws of the Standard Problem-Solving Paradigm
40
3.1 Questioning the Formulation of “Ineffective Convention Enforcement”
41
3.2 Questioning the Ingredients of the Standard Problem-Solving Paradigm
43
3.2.1 A Skeptical View of Logical Starting Point
43
3.2.2 A Skeptical View of the Theoretical Resource
44
3.2.3 A Skeptical View of the Control-Oriented Solutions
46
4 Virtue and Limits of the Standard Problem-Solving Approach for Analyzing Convention Enforcement
47
4.1 Strong Interpretative Power in Causally Attributing the “Ineffective Convention Enforcement”
47
4.1.1 Attributing the Lack of Political Will to Domestic and External Factors
48
4.1.2 Finding Root Causes: Exploitable but Unmeasurable National Regulatory Efforts
51
4.2 Weak Prescriptive Power of the Standard Problem-Solving Approach in Current Literature
52
4.3 The Inherent Limitation of the Problem-Solving Paradigm
54
4.4 The Demand for a Supplementary Paradigm
55
5 Framing the Supplementary Paradigm
56
5.1 The Mission of the Supplementary Paradigm
56
5.2 Theoretical Source for Framing the Supplementary Paradigm
57
5.2.1 Public Choice Theory as the Theoretical Source for Both the Problem-Solving Paradigm and the Supplementary Paradigm
57
5.2.2 Institutionalism that Highlights the Impact of Informal Institutions on Individual Preferences
58
5.3 A Historically Contextual Approach
61
5.4 The Relation of the Historically Contextual Approach to the Problem-Solving Paradigm
62
6 Outline of the Book
63
References
64
Chapter 2: The Institutionalization of OECD Anti-bribery Collaboration
72
1 Introduction
72
2 The FCPA: An Endogenously Created Institution in the Economic Context of the US
75
2.1 A Historical Review: The US’ Unilateral Illegalization of Transnational Bribery
76
2.1.1 The Abolition of Tax Deduction Provisions (the 1950s)
76
2.1.2 The FCPA Enactment and the Criminalization of Transnational Bribery (the 1970s)
77
2.1.3 A Consequent Question: The Side-Effect of the FCPA on US Overseas Business (the 1970s)
80
2.1.4 US Efforts and Failures to Multilateralize the FCPA (the 1970s)
80
US Efforts
80
US Failures and the Possible Reasons
82
2.2 Limits of Standard Accounts of the FCPA
83
2.3 The FCPA as an Outcome of Coordinating Domestic Demands within the Boundaries of Democratic Values
86
3 The OECD Anti-bribery Convention: A “US-Induced” Institution
91
3.1 A Historical Review: The Role of the US in the Formation of the Convention
91
3.1.1 US Motives to Establish a Convention (Since the 1980s)
91
3.1.2 US Strategies to Establish a Convention (the 1990s)
93
The Strategy of Imposing Anti-bribery Terms by Trade Treaties
93
The Strategy of “Public Diplomacy”
95
The Strategy of Normative Persuasion Through International Organizations
96
3.1.3 US Achievements: The OECD Anti-bribery Convention and Other Agreements (the 1990s)
98
3.2 Limits of Standard Accounts of the Convention
100
3.3 The Convention as an Outcome of a Chain Reaction Initiated by the US
103
4 The Post-Convention Era: “OECD-Imposed” Institutions for Non-collaborators
105
4.1 An Attempt by Existing Collaborators to Expand the Community (Since 1994)
106
4.2 A Historical Review: OECD Efforts to Expand the Community of Collaborators (Since 1999)
106
4.2.1 OECD Efforts to Recruit New Members into the Convention
106
4.2.2 OECD Efforts to Collaborate with Non-member Countries
107
4.3 The Expansion of the Collaboration: Anti-bribery Institutions Imposed on Non-collaborators by Current Collaborators
108
5 Institutionalizing the Collaboration: An Evolutionary Event Defined by Path Dependence
109
5.1 The Relevance of Path Dependence to the Whole Story
110
5.2 Key Operative Factors of the Establishment of Central Institutions of the Collaboration
111
5.2.1 An Initiator of the Discussion
111
5.2.2 The Divergence of Interest Demands and the Coordination Function of Countries
112
5.2.3 The Normative Function of Law that Delimits the Moral Boundaries of the Institutions
113
References
115
Chapter 3: A Causal Attribution Model for General Compliance with the Convention
120
1 Introduction
120
2 Destabilizing Factors Indigenous to the Collaboration that Encourage Defection
123
2.1 A Predefined Behavioral Logic of Signatories
124
2.2 Destabilizing Factors in the Collaboration that Encourage Defection
126
2.2.1 Factors that Lead to Unsatisfactory Cost-Benefit Calculation
127
Poor Expected Benefits but High Costs
127
A Large Group of Outsiders that Exist as “Legal Defectors”
129
2.2.2 Factors that Create Uncertainty
131
2.2.3 Interim Summary: A Collective Action Not Self-Sufficient to Survive
134
3 The Current Institutional Design Fails to Prevent Defection
135
3.1 The Importance of a Coordinating Mechanism
135
3.2 Two General Causal Attributions: The Absence of Credible Sanction and the Absence of Effective Monitoring
137
3.3 The Underperformance of the OECD Monitoring System
139
4 A Non-routine Problem that Defies Routine Solution
142
4.1 Unquantifiable Individual Efforts in OECD Anti-bribery Collaboration
143
4.2 A Non-routine Problem that Fails Central Monitoring
144
4.3 A Non-routine Problem that Demands an Innovative Solution
148
5 Beyond Explaining the Problem of “Ineffective Enforcement”
149
5.1 A Few Signatories’ “Zealous Enforcement” of the Convention Is Not Explained
149
5.2 The Problem-Solving Paradigm Cannot Explain This Developmental Reality
150
5.3 A Historically Contextual Approach to Analyze the Case of the US’ FCPA Enforcement
151
5.3.1 A Historically Contextual Approach
151
5.3.2 A Case Study of the US’ Increasingly Aggressive Enforcement of the FCPA
153
5.3.3 Expected Finding
153
References
157
Chapter 4: A Solution Model for the Problem of “Ineffective Enforcement”
161
1 Introduction
161
1.1 Collective Action and Collective Action Problems
161
1.2 The Utility of a Monitoring System for Solving Collective Action Problems
162
1.3 The “Underperformance” of the OECD Monitoring System
164
1.4 An Unexplained Question: Institutional Flaws Accounting for the Monitoring Problem
165
2 Structural Flaws of the OECD Monitoring System
166
2.1 The Organizational Structure of the OECD Monitoring System
167
2.1.1 The OECD Monitoring System: Three Phases of Peer Review
167
2.1.2 The OECD Monitoring System: A Centralized Structure
169
2.2 Information Flow in the OECD Monitoring System
170
2.3 Inaccurate, Second-Hand Information that Cannot Maintain “Effective Control” Among Signatories
174
3 Toward High-Level Information Inflow: Private Sector as Information Sources
177
3.1 The Advantage of Private Sector Actors as Information Source
178
3.2 The Legitimacy of Private Sector Actors as Information Source
180
3.3 Existing Laws on Rights of Private Sector Actors
182
4 Toward High-Level Information Processing: The Dominant Role of National Prosecutors
184
4.1 The Limited Role of Private Sector Actors in Transnational Bribery Regulation
184
4.2 Incorporating the Private Sector and the Public Sector into a Holistic Solution Model: The US Model of Qui Tam Action and the Whistleblower Program
186
5 Toward Effective Mutual Monitoring: Participation Rights of National Regulators in the Home Countries of Victimized Competitors
188
5.1 Can the US Model Be Marketed to Other Signatories?
188
5.2 Taking the Role of National Regulators in the Home Countries of Victimized Competitors into the Solution Model
190
5.3 Outlining a New Type of Monitoring System
193
6 Conclusion
195
References
199
Chapter 5: Inspirations from the US’ Increasingly Aggressive Enforcement
204
1 Introduction
204
2 The SEC’s Increasingly Aggressive Enforcement of the FCPA
206
2.1 The SEC’s “Quiet Years” in FCPA Enforcement in the First Two Decades
208
2.1.1 Enforcing the Anti-bribery Prong of the FCPA: A Duty “Uncorrelated” to the SEC’s Mission
208
The SEC’s Central Mission
208
The SEC’s Statutory Duty of Enforcing the FCPA
208
The SEC’s Resistance to the Statutory Duty
211
2.1.2 A Sharp Contrast: Zealously Enforcing the Accounting Provisions but Overlooking the Anti-bribery Provisions
215
The SEC’s Zealous Enforcement of the Accounting Provisions
215
The SEC’s Neglect of the Anti-bribery Provisions
217
2.1.3 Implications of the SEC’s Performance in the First Two Decades
219
2.2 The SEC’s Increasingly Aggressive Enforcement of the Anti-bribery Prong in Recent Two Decades
220
2.2.1 The SEC’s Regulation: From for Remedial Purposes to for Punitive Purposes
222
2.2.2 The SEC’s “Right-to-Know” Corporate Misconducts
222
2.2.3 Further Expansion of the SEC’s Supervision over Auditors
224
2.2.4 The Whistleblower Program
226
2.3 A Bridged Gap Between Enforcing the Accounting Provisions and the Anti-bribery Provisions of the FCPA
228
3 The DOJ’s Increasingly Aggressive Enforcement of the FCPA
229
3.1 The DOJ’s “Passive Enforcement” in the First Two Decades
230
3.1.1 The Tension Between FCPA Enforcement and the DOJ’s Central Mission
231
3.1.2 The DOJ’s Conservative Strategy
233
3.1.3 The Limited Effect of the Conservative Strategy
235
3.2 The DOJ’s “Active Enforcement” in Recent Two Decades
237
3.2.1 Private Enforcement of Public Law: Private Sector Actors as Whistleblowers
238
The Enactment of the False Claims Act and qui tam Actions
238
The Whistleblower Program
240
3.2.2 The Expansion of the Jurisdiction of the FCPA to Foreigners
240
3.2.3 The Application of Diversion Agreements: An Effective Tool to Save Social Costs?
243
3.2.4 The Big-Dollar FCPA Settlements as an Incentive
243
3.3 Efforts of the DOJ to Reconcile FCPA Enforcement and US National Interests
244
4 Increasingly Aggressive Enforcement: An Unavoidable Result of Independent Performance of Duties of Domestic Agencies
245
4.1 The Increasing Demand for Transparent Corporate Management Caused a “Black Hole Effect” Altering the Institutional Context for FCPA Enforcement
246
4.2 Performance of the SEC and the DOJ that Fails Rational-Choice Interpretations
248
4.3 The “Catfish Effect” of the US’ FCPA Enforcement on Other Regulatory States
251
5 Conclusion
253
References
264
Chapter 6: Conclusion
269
1 Methodology: The Problem-Solving Paradigm and a Historically Contextual Approach
270
1.1 The Problem-Solving Paradigm in Current Literature
270
1.2 The Ideological Roots of the Problem-Solving Paradigm
271
1.3 Strength and Limitation of the Problem-Solving Paradigm
272
1.4 A Historically Contextual Approach as a Supplementary Methodology
273
2 The Dynamic of the Formation of OECD Anti-bribery Collaboration
273
3 The Dynamic of State Compliance with the Convention
275
4 A Solution Model for the Problem of “Ineffective-Enforcement”
277
5 Inspirations from the US’ Increasingly Aggressive Enforcement of the FCPA
278
6 Future Research Directions: The Contributions and Limitations of Historically Contextual Analysis
281
Index
284