Pathways of anti-corruption law in the global arena

Barbara L. Boschetti

Professore associato di diritto amministrativo, Università Cattolica di Milano

Pathways of anti-corruption law in the global arena*

 

Summary: I. Introduction. – II. Pathways of anti-corruption law in the international (and global) arena – III. Trans-national Pathways of anti-corruption law. – IV. Pathways of anti-corruption law as a preventive law. – V. Systemic (and para-systemic) effects of anti-corruption law into domestic legal systems. – VI. Conclusions.

 

I.         Introduction

The purpose of the present paper is to examine the ways in which anti-corruption law is conditioned, describe the set of contaminating factors to which it is exposed and to which, in turn, it exposes the legal order at various levels; lastly to try to explain the various types of contaminating processes insofar identified. Therefore, in making this contribution, the intention is to take a closer look at the origin and development of legal sources that lie at the heart of this particular field of interest.

The picture that unfolds goes a long way in helping us to understand some of modern legal systems and certainly provides a greater understanding of the Italian legal system. It also helps to reveal the essence of the role of States in the governance of such processes and the risks and weaknesses that compromise the effectiveness of anti-corruption law.

Nevertheless, we are perfectly aware that the choice of analysing anti-corruption law as a  field or sector of law may be somehow critical, due to two relevant ongoing phenomena: on the one hand, that the concept of corruption is progressively widening, aligning itself closely with the theme of sustainable development, and, on the other hand, that the more the preventive approach takes root in anti-corruption law the more this field of law becomes influential in shaping other sectors of law. Indeed, it is thanks to these phenomena that anti-corruption law can have an impact at a systemic level, which is something of an anomaly for a law that presents itself as sectorial in character.

 

II.       Pathways of anti-corruption law in the international (and global) arena

Much of that which falls within the scope of anti-corruption law is rooted in the international sphere and aspires to become a global phenomenon.

That said, this article will seek to demonstrate, on the one hand, how international anti-corruption law is multifaceted and can only partly explain domestic anti-corruption laws in individual states, and, on the other hand, how the globalisation of anti-corruption law, if at all, is still underdeveloped and as such is not yet a reality. Indeed, in a certain sense the globalisation of anti-corruption law is not even to be welcomed^[1].

A key role in the development of anti-corruption law is played by international conventions, among which is the 1997 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (which came into force in 1999)^[2], and the United Nations Convention Against Corruption, 2003 (which came into force in 2005)^[3].

Alongside the abovementioned Conventions, there are also some very important regional conventions (in a certain sense the OECD Convention is also a regional one), which we will return to in the next section.

These Conventions take rather different approaches, which can only partly be justified on the basis of the diverse character and mission of the institutions themselves.

The UN Convention is considered to be the more general of the international conventions, not only because of its scope of application but also because of its “content” and approach. It is credited with having developed a wide definition of corruption, having placed the logic and effectiveness of preventive measures at the forefront of domestic anti-corruption law, and having placed an obligation on States to identify specialised entities that can counteract and prevent the phenomenon.

The OECD convention has other merits: on the one hand, it is the first international response to the bribing of public foreign officials, and this the first to acknowledge that corruption is a problem of governance at a political-institutional level, and, on the other hand, it paves the way for the development of an implementation system that is sufficiently flexible to incorporate anti-corruption soft law and monitoring mechanisms.

While the topic of anti-corruption soft law will be looked at later on, it should be pointed out at this stage that the strategy comprising recommendations and guidelines which aims to provide solutions, measures and best practices has shown itself to be extremely dynamic and capable of penetrating individual legal orders. Moreover, OECD soft law provides specific advice for the public sector, addresses topics such as conflicts of interest and the integrity of public administration and public contracts^[4].

The conventions (a typical example of international hard law) are the result of various processes that reciprocally support and influence one another: (a) the cultural process, involving the progressive perception and cognitive awareness of corruptive phenomena and their importance for corporate, political and institutional governance at various levels; (b) a pre, para and post normative process, in which the praxis and instruments of soft law and soft regulation dominate^[5]; and (c) a normative process, involving the identification of legal instruments and techniques. It is, in fact, a process that originates, almost paradoxically, in the domestic arena and is thereafter incorporated into the international regulatory system.

The first of these processes, the perceptive-cognitive one, can almost be taken for granted: it is always the case when one speaks of the law and legal responses to social issues; it is perhaps even more evident when one speaks of anti-corruption law. However, what is interesting here is how such an approach can help to reveal the emergence of non-governmental organisations and businesses that operate on an international and global level^[6], new areas in which information can be exchanged and the positions that States can occupy within that sphere (corruption is a cost that impacts on the economic interests of States, on public debt, on the attractiveness of a country’s system and, not least, on its political room for manoeuvre)^[7], and, finally, the pervasiveness of the instances affecting human rights and sustainable development.

It is true that the dynamisms (by which it is not only that of corruptive phenomena) and fragmentation of this scenario go a long way to explaining the presence of delays and lacunas in anti-corruption law.

The second of these processes, the pre-para-post normative approach, comprises instruments that lie not only beyond the remit of traditional sources but also that of typical legal instruments: recommendations, policies, guidelines, best practices, resolutions, declarations, working papers, reports and much more besides^[8].  Most of these instruments come under the collective category of soft law or soft regulation and involve the interaction of a wide group of entities, at all levels, both within and beyond the institutions.

These documents may anticipate (for example the OECD Recommendations 1994^[9] or the Principles of the Council of Europe 1997^[10]), exist alongside (for example the policies of the WB e IMF^[11]), and – in the enforcement phase- follow anti-corruption hard law (see for example the Recommendations, guidelines and best practices of the OECD and the European Commission and national regulators^[12]).

The effectiveness of anti-corruption law and related measures are key. They need to be sufficiently flexible to adapt to the constantly changing phenomena they face. These are tasks performed by soft law and soft regulation.

This approach is the result of two central changes in the legal world, especially in civil law countries.

Above all, the rule, is produced within the context of a wider process – the so-called regulatory process -, which comprises implementation/execution, enforcement, monitoring and, ultimately, review of the rule. All of this, takes place within an ever changing and dynamic environment in which the rule is itself a work in progress.

            Furthermore, it plays a key role in unlocking the creative law-making process, which, in turn, exposes the rule to a set of contaminating factors, osmosis, and other influences – including negotiations – that come into play at different phases and at all levels of the regulatory process. This process of contamination is heightened by the parallel change in the international scene (and in its stakeholders) and in the development of an international, even global, administration^[13]. The mechanisms and instruments for cooperation and sharing of experiences (including those of a transnational and intergovernmental nature) which have been introduced by international anti-corruption law provide the pre-para and post regulatory process with new lifeblood.^[14]

Finally, as previously said, there is the regulatory or normative process in the proper sense, that is, the one set out by anti-corruption hard law. This process, almost paradoxically, originates in the national sphere and from there spreads outwards to the international one.

The key reference document is the Foreign Corrupt Practices Act (FCPA) which was approved by the United States in 1977^[15], in the aftermath of the scandals that struck American politics in the 1970s (one need only cast one’s mind back, ex multis, to the Lockheed and Watergate scandals).

In truth, the FCPA is «One Country's Response to an International Problem»: it is no accident, then, that since its approval – indeed even before – the United States multiplied its efforts to adopt an anti-corruption law at an international level that ensured equality between parties to international transactions. The FCPA subsequently became the matrix for the greater part of international anti-corruption law^[16].

In fact, for the first time in the OECD Convention of 1997, the American model is used as a benchmark to obtain an undertaking from each State to adopt a national anti-corruption law, which would make provision not only for the criminalisation of corruptive conduct but also pro-enforcement and preventive measures^[17].^[18]

Its influence extends, however, well beyond the anti-corruption sector, through it a number of instruments and measures were introduced that are used in other sectors and branches of the law.

Any violation of the FCPA, essentially for acts of corruption by foreign public officials, involves specific criminal and civil responsibilities (both for individuals and companies/corporations). However, alongside these provisions, the FCPA has introduced a series of measures to combat corruption, including preventive measures, which have profoundly influenced international anti-corruption law (and not just). Of particular interest, are the measures on the “traceability” of transactions (the so-called accounting provisions or books and records provision) and on internal company control systems (the so-called internal (accounting) controls provision)^[19].

For the first time in a legal text, we hear reference to internal integrity and ethics, codes of conduct, risk assessment of decision-making procedures and, thus, also corporate compliance programs^[20]. The FCPA has also introduced an innovative early consultation mechanism – for which the Department of Justice (DoJ) is responsible – which assesses compliance of future conduct on the basis of policies on enforcement currently applied by the DoJ^[21]. This “strategy” will subsequently be extended to other areas of federal law and will be further strengthened following the entry into force of international law^[22].

It was only in a subsequent moment, with the UN Convention of 2003, that the United States’ undertaking to set up national bodies or institutions expressly dedicated to the prevention of corruption became a part of international anti-corruption law^[23].

The three processes outlined above, help us to appreciate the multiplicity of channels and levels where anti-corruption law can establish itself – and also be contaminated – in the international and global spheres.

Despite its importance, the regulatory or normative process does not provide an exhaustive list of anti-corruption preventive measures. A unique set of instruments have been introduced within the same regulatory and normative context and with the same underlying purpose, which define a process that is closely connected to the normative one, and which contributes to define its contours from a dynamic perspective. Behind the scenes, in a type of macro environment, we find the perceptive-cognitive process, which establishes theoretical-cultural connections that have a significant impact on the development of anti-corruption law. For example, we will return to these at a later point, one need only think of the links between corruption and human rights, corruption and sustainability, and corruption and resilience. Once such connections have been established, anti-corruption law acquires a new and ever broadening force which tends to have a systematic impact.

 

III.      Trans-national Pathways of anti-corruption law

National anti-corruption laws follow a number of different approaches.^[24]. Indeed, the transposition of international anti-corruption law is anything but homogeneous at a national level.

Such a lack of homogeneity is only partially justified by the multiplicity of approaches taken at an international level^[25].  Other factors drive this lack of homogeneity, including: (a) firstly, a plurality of regional anti-corruption laws sit alongside international anti-corruption law; (b) secondly, trans-national relations (even informal ones) have a significant impact on the drafting of national anti-corruption laws; (c) and finally, but certainly not least, the diversity of domestic contexts, influenced by a set of random, emergency and circumstantial events.

As previously mentioned, international anti-corruption law is not itself homogeneous, precisely because of the many regional or other sector-specific anti-corruption laws.

This notwithstanding, it is nevertheless worthwhile mentioning some key sources which have had, and continue to have, an impact on anti-corruption law in European countries, starting with the conventions of the Council of Europe (the Criminal Law Convention on Corruption of 1999, which came into force in 2002, and the Civil Law Convention on Corruption of 1999, which came into force in 2003)^[26]; at a European Union level, the Convention on the financial interests of the European Union of 1995, which only came into force in 2002 (and which was later followed by the EU Directive 2017/1371)^[27]. Indeed, its first supplementary protocol provides a definition of active and passive corruption; whereas the second supplementary protocol acknowledges the ECJ’s key role in interpreting and ensuring a uniform application of the applicable law^[28].

Not only do these regional laws condition the transposition of international anti-corruption law at the national level but also the itineraries of international anti-corruption law itself. We should take into consideration that the territorial scope of application of certain conventions promoted by regional institutions does not mirrow that of their adhering States; that the influence of such conventions reaches far beyond their territorial scope of application; that there are existing overlaps between regional bodies themselves and between the latter and supranational bodies (the European Union participates, for example, in the work of the OECD and the WTO).

The second impact factor, as previously mentioned, is connected to the itineraries of anti-corruption law at the trans-national level. These itineraries have a significant influence on national anti-corruption law^[29] and give rise to what can in short be referred to as “transnational contamination”.

This can best be illustrated by a series of examples. One example can be seen in the relationship between the United States and France. There were judicial proceedings involving certain French companies in the United States for misconduct under the FCPA^[30]. These events significantly delayed the process of reform of anti-corruption law in France. Indeed, it was only at the end of 2016, following a gestation period of two years, that the Loi Sapin II was finally approved and measures on corporate responsibility became part of French anti-corruption law (such measures have been in force since May 2017).

Another example relates to anti-corruption law reform in the United Kingdom. The Anti-Bribery Act of 2010 is considered by many to be one of the most severe pieces of legislation in the world^[31]. This reform has strongly influenced the development of anti-corruption law in other European countries and reflects the position of the European Union in this area^[32].

It is precisely these developments in anti-corruption law in the European Union and its Member States which permit us to introduce another interesting event that took place between the European Union, on the one hand, and the United States, on the other. Many of the issues on the fight against corruption and on the development of measures to combat it were the subject of the well-known TTIP^[33]. Leaving the effects of the US presidential elections on the negotiations to one side, this underlines the growing influence economic and business interests have in setting the pace not only for anti-corruption law but also for many other regulatory measures. This is confirmed also in the New trade strategy of the European Union^[34], in the GSP Plus Scheme^[35], in the efforts made by the European Union to bring into force the WTO-Trade Facilitation Agreement (TFA)^[36]. Another instance can be seen in relation in the area of public procurement law: the new EU Directives in the field were purposely delayed in order to incorporate the provisions of the revised 2004 WTO agreement on public procurement. These measures clearly pursue anti-corruption objectives and even have an impact on relations with third party countries (and, consequently, on their domestic law).

The final point to be addressed in this section is the diversity of domestic contexts in which global/international/regional anti-corruption law has to be incorporated. A full understanding of the reasons for such diversity is beyond the scope of this paper, in so far as it would require us to examine cultural, social and institutional phenomena.

Instead, the intention here is to draw attention to a factor which is often overlooked and which has nevertheless an immeasurable effect not only on national anti-corruption laws but on their lack of homogeneity: that is, the random, emergency, circumstantial events which ultimately determine the character of national anti-corruption laws.

The first random factor is time: the set of variables which national anti-corruption law is exposed to is time-dependant; as is the more or less systematic character of its reform^[37]. Other random factors which play a major role in shaping anti-corruption law are the adequacy of current domestic anti-corruption law, and the state of ongoing parallel reform, together with other political issues which may be followed a rapid regulatory response.

Again, some examples may be useful here. In selecting the anti-corruption specialised body as required by the UN Convention of 2003, Great Britain copied out the current one in France^[38]. However, few years later, when French anti-corruption law was finally approaved and the Loi Sapin II passed, France shifted to a different model, an “institutional” one. At the same time, France, again due to the delay in the reforms, succeeded in passing anti-corruption measures which may not otherwise have obtained the required political majority (especially those on corporate responsibility). In 2014 Italy opted for a multi-functional anti-corruption authority due to random and circumstantial ongoing events, such as Expo, Expo-related emergency procurement procedures, the inadequateness/failure of the existing public procurement authority whose functions are then taken over by the Anti-corruption Authority).

These few examples are sufficient to conclude that much of national anti-corruption law is not only out of manoeuvre (from the perspective of international and supranational law), but it is also highly unpredictable. In the end, this also confirms the glocal character of anti-corruption law.

 

IV.      Pathways of anti-corruption law as a preventive law

From its conception, prevention is a key component in anti-corruption law, since it provides innovative measures for avoiding corruptive misconduct in financial and decision-making processes both in the public and private sectors (i.e. compliance programs, books and records provisions, and other preventive measures set out in the FCPA of 1977). The preventive approach is now at the very heart of anti-corruption policies on an international level and has been reinforced over time with increasingly more innovative and sophisticated instruments.

Prevention – and the risk-management approach it fosters – is not unique to anti-corruption law, but it has been progressively spreading to other sectors such as environmental, work, machinery, chemical, cosmetic and food safety legal fields.

A number of preventive measures have been introduced in these sectors which are now accepted as “standards” in preventive law: risk evaluation procedures (of both projects and plans), the ongoing improvement of preventive measures, the ongoing adaptation to the best available technologies (B.a.t.) and technical standards, the role of compliance certificates, the need for ongoing personnel training and role rotation, new “sunset” authorising schemes and many more besides.

Even though subsequent to anti-corruption law, the preventive approach and preventive measures in such sectors have developed more rapidly for a number of reasons, also because the interests were of a less politically sensitive nature or, on the contrary, received a high degree of political consensus. In the environmental field, the principle of preventive action has been incorporated since the Declaration of Stockholm in 1977^[39] and has spread internationally in a very short time.

Other relevant legal sectors have over time aligned themselves with the preventive and risk-management approach: among which there is banking, insurance and financial markets, tax and public finance and accounting^[40].

Indeed, these sectors have even developed new preventive methods and enforcement mechanisms, for example, the concept of ongoing supervision developed in the Eu banking, insurance and financial markets, and the concept of cooperative compliance in the tax sector, and last but not least that of cooperative supervision introduced by the Italian Anti-corruption Authority in the public procurement sector. With regard to the latter, it is worth noting here that it was first trialled in response to corruption in the 2014 Milan EXPO tenders, which subsequently became an international best practice and was, ultimately, incorporated in the Italian regulatory system (art. 213, Code on Public Contracts).

The concept of preventive enforcementcomes as no surprise. Prevention has long affected supervision and control as well as punitive and repressive law, whether in the field of anti-corruption or otherwise: the use of sanctions (civil, criminal, administrative) as a preventive measure has been the subject of much detailed study and is a heated topic of debate not only in the field of criminal law but also in other sectors including environmental, antitrust, administrative law. Here preventive concerns have been raised as regards the possibility of using liability in damages as a preventive measure for dealing with unlawful misconduct in the public sector, or as regards the impact of clemency programmes on the preventive efficacy of antitrust sanctions^[41].

Thus, what has emerged in these sectors – along with the regulatory solutions that have come forth – is of great assistance for anti-corruption law and its efficacy. They can help to re-think (re-shape), from a preventive perspective, the powers invested in the National Italian Anti-corruption Authority to impose sanctions ^[42].

While anti-corruption law has, in this cross-sector contamination, much “to learn”, at the same time, it also has much “to give”.

Anti-corruption law’s ability to contaminate other sectors lies precisely in its pervasive preventive approach.

Indeed, corruption prevention efforts generally have a systemic impact on the legal system, in the degree to which they are capable of regulating the conduct (and on ethical behaviour and integrity) of the stakeholders, decision-makers, and businesses and organizations, in the public and private spheres^[43].

It certainly gives rise to, and to a greater degree than occurs in other legal sectors, to a cross-contamination between private and public law. This can be seen in anti-corruption plans which have been introduced in the public sector in Italy since 2012 and which were based on compliance programs – or organisational models (pursuant to the definition set out in law 231/01 on corporate criminal responsibility) – in operation in the private sector^[44].

A fundamental lever is provided by the international and global context which enables anti-corruption law to penetrate an increasingly broader spectrum of public policies due to the link between corruption and human rights, and between corruption and sustainable development.

In the European Union, the inclusive approach is filtered instead primarily through the principle of integration, as was the case for environmental protection law. This inclusive strategy – which has been progressively extended to a number of social goals including the fight against corruption –has been greatly reinforced – not without some contradiction – in the new European Economic Constitution. Indeed, recent EU law legitimises restrictions on competition where the purpose is, among other things, to prevent and fight corruption. Examples can be seen in the most recent public procurement law, which permits contracting authorities to adopt (to put in place) anti-corruption measures at any stage of the procurement procedure, including the execution phase^[45] .

One may then affirm that the dissemination of the preventive logic and risk management approach, that is one of the characterising features of this age and modern law^[46], exposes anti-corruption law to a number of contamination elements which are different to those mentioned in the previous sections, and which are cross-sector (including across private and public law sectors). To summarise, anti-corruption law learns prevention from other sectors, in the same way as other sectors learn from anti-corruption law pursuant to a circular and dynamic mechanism. Due to the role played by “pre-para-post law” some new preventive strategies end up being incorporated into hard law, even in sectors other than those in which they originated.

 

V.        Systemic (and para-systemic) effects of anti-corruption law into domestic legal systems

 

Anti-corruption law tends to have a “systemic” impact on the legal system. That is to say that anti-corruption law is responsible for more or less pervasive downstream reform processes of sector-specific legislation.

Such reforms – along with their coherence – do not relate to all legal sectors, nor to all law fields, depending on the different approaches taken by anti-corruption law at the domestic level (see section 3 above).

The systemic effect is due, above all, to the anti-corruption law preventive perspective: as it has previously been said, prevention presupposes the ability to guide, ex ante, the conduct (and ethical behaviour and integrity) of agents, decision-making processes, and organisational models in the public and private spheres; it also drives the re-definition and control of decision-making processes along with the re-definition of regulatory, supervisory and enforcement mechanisms. Such transformations may also require the reform of criminal law, labour law in both the public and private sectors, civil and commercial law, public law (if not constitutional law), both substantive and procedural administrative law^[47].

However, the systemic effect must also be re-connected to the progressive widening of the concept of corruption or, better, to the multidimensionality of the concept.

There are, without doubt, many concepts of corruption channelled by anti-corruption law^[48]  relevant to the evaluation of the adequacy/inadequacy of States’ efforts in complying with international anti-corruption law transposition duties.

This notwithstanding, a meta-notion of corruption is emerging capable of driving a great variety of different applications and consequently of reinforcing the systematic impact of anti-corruption law. The widening of the notion of corruption can be easily seen in the concept of administrative corruption, or maladministration. Within this meaning, the concept of corruption intersects that of legality, transparency^[49], impartiality (intended also as an absence of conflicts of interest)^[50]. This new concept of corruption also affects criminal law and corruptive misconducts thereby sanctioned.

Even law compliance – and not just compliance with anti-corruption law, has come to the fore once more as an essential preventive measure following years in which attention was focussed on efficiency at the expense of legality (in particular in relation to administration action). Thus, for example, compliance with the terms of the law is one of the anti-corruption preventive measures identified by the National Anti-corruption Plan (PNA) and and that has to be transposed by Local Authorities into their Triennial Plans for the Prevention of Corruption and Transparency(PTPCT)^[51]); it is also relevant for evaluation public officials performance and liability in performance plans, public officials’ responsibility plans (public and corporate accountability). Compliance with the law has also become a relevant standard to be assessed in order for businesses to participate in certain markets (i.e. a new-past performance rating system is now set forth in public procurement law) or to enter credit loans (legal rating scheme).

The systemic effect, however, is not linked to the transposition of international anti-corruption law nor to the broadening of the concept of corruption. Today, the prevention of corruption is a stand-alone public objective, one that strategically drives, shapes and moulds sector-specific legislation and regulatory authorities’ action.^[52] This approach – without doubt drawn from the inclusive logic promoted by the international and supranational legal order (see further section 4 above) – opens up new and wider boundaries to anti-corruption law (in terms of relevant sectors, policies, law fields).

The systemic impact has a collateral effect which clearly must be taken account of. There is a risk that the legislator, whether through fragmentary non-coherent interventions or through a formalist rather than a substantive compliance with international obligations may give rise to a para-systemic domestic anti-corruption law.

In using this expression, the intention is to describe a fairly frequent phenomenon which is related to the new order (or, rather, disorder) of legal sources originating at a multi-scale dimension. Novelties brought about by “external” sources (other than domestic, both international and supra-national) are often transposed in a quasi-parallel legal dimension, lacking the regulatory effect necessary to ensure a full coordination and integration of old and new regimes. In this way, not only many sector-specific risk assessment instruments may co-exist, as they actually do, each with different objectives and actions to be fulfilled; but also an irrational propagation of figures “responsible” for reaching such objectives and fulfilling such obligations follows up and so is a bulk of regimes and procedures that run parallel to the “ordinary” ones.

This can only partly be explained by the need to fight corruption and break up the so-called chain of corruption. In short, such measures do not always address the need to create and maintain alternative channels and exits in the event where the ordinary ones are obstructed (due to corruptive misconduct). In Italian law, for example, for this specific purpose a new right of access to civic information has been granted along with the provision of new powers vested in the figure of a “responsible for the prevention of corruption and transparency”; a new whistleblowers’ protection regime and a wider supervisory role has been taken on by the National Anti-corruption Authority for tender parties[53].

Apart from these examples, there is a serious risk of an unnecessary ‘para-systemic’ anti-corruption law and, in parallel, of an unsustainable hypertrophic regulatory regime (in the sense that it goes against the principle of resiliency)^[54].

The importance of regulatory efforts taken both to harmonise the reforms that have been introduced over time is clear – a case in kind being the “unification” into one figure of the responsible for the prevention of corruption and responsible for transparency – and to simplify the bulk of duties laid down by successive but unsystematic legislative interventions – see, i.e., legislative decree no. 10/2016.

 

VI.      Conclusions

A number of conclusions can be drawn from the analysis carried out hereto.

Above all, anti-corruption law reveals itself to be a “glocal” law^[55].

Despite the deontic impact and the “uniformity” driven by international law, and, in more recent years, by EU law, anti-corruption law is exposed to a set of contaminating factors which determine its structure in domestic legal systems.

This set of contaminating factors can be classified as exogenous, endogenous and congenital.

Among the exogenous factors, one should consider the variables that are connected to the paths which contribute to the shaping of  anti-corruption law in the global and international dimension. The perceptive-cognitive path; the pre-para-post regulatory path (soft law); and the regulatory or normative path (hard law). Exogenous factors also include the variables depending on the paths of anti-corruption at the trans-national dimension.

Among the endogenous factors, and in addition to the cultural and other country-specific aspects, there is a set of random, emergency and circumstantial variables which domestic-anti-corruption law features depend on, along with the coherence and subject-matter of reform processes it fosters.

Among the congenital factors, which are related to the essence of anti-corruption law from the very beginning, is the centrality of the preventive approach. This approach is responsible for a cross-sector contamination, that is to say a contamination across different fields of law which share the same preventive regulatory approach; and a systemic contamination, that is to say a contamination across different fields of law which anti-corruption policies are embodied. This second trend may come across with some “para-systemic” risks, that is risks associated with a lack of co-ordination (of old and new regimes) and of an hypertrophic domestic legal system. 

In conclusion, the task of managing the adaptation of the domestic legal system to novelties driven by anti-corruption law and triggered by the widening of the concept of corruption, lies with the States. If it is true, then, that the States do not live of anti-corruption alone, of corruption alone they can die.

* Il contributo è stato sottoposto a double blind peer review.

[1] See further the declaration made in the aftermath of the Anti-Corruption Summit held in London in 2016 by the British Government, Cabinet Office, Global declaration against corruption, available at www.gov.uk/government/publications/global-declaration-against-corruption/global-declaration-against-corruption. On the negative aspects of the process of the globalisation of anti-corruption law and the “administration” of anti-corruptionanti-corruption see E. Kevin, Does the Globalization of Anti-corruption Law Help Developing Countries?, New York University Law and Economics Working Papers,2009,Paper 203, available at sr.nellco.org/nyu_lewp/203.

[2] The prevention of corruption overlaps with the endeavours of other international institutions operating in the fields of economic regulation and global commerce, first among which is the WTO. In addition to the Plurilateral Agreement on Government Procurement (GPA), as revised in 2014, there is also the Trade Facilitation Agreement (TFA) of 2013, which came into force on 22 February 2017.

[3] For an exhaustive list of the conventions, including those at a regional level, aimed at combating the fight against corruption see the WP Anti-corruption policies revisited, available at www.againstcorruption.eu/wp-content/uploads/2015/12/D1.1_Part3_International-Anti-corruption-Normative-Framework.pdf. Further reading, E. Chiti, Mismanagement by European Agencies: Concerns, Institutional Responses, and Lessons, in J.B. Auby - E. Breen - T. Perroud (ed.), Corruption and Conflicts of Interest. A Comparative Law Approach, Cheltenham 2014, pp. 253 ss.

[4] Ex multis, OCSE, Recommendation on public integrity, 2017, available atwww.oecd.org/gov/ethics/recommendation-public-integrity.htm; Recommendation on fighting bid rigging in public procurement, 2012 available at www.oecd.org/competition/oecdrecommendationonfightingbidrigginginpublicprocurement.htm; Recommendation on guidelines for managing conflict of interest in the Public Service, 2003, available at www.oecd.org/gov/ethics/legal-instruments-for-corruption-prevention-in-public-governance.htm; High level principles for integrity, transparency and effective control on major events and related infrastructures 2016, available at www.oecd.org/gov/ethics/High-Level_Principles_Integrity_Transparency_Control_Events_Infrastructures.pdf; see also the recent material on good practice issued on Public procurement for innovation. Good practices and strategies. OECD Public governance reviews, available at keepeek.com/Digital-Asset-Management/oecd/governance/public-procurement-for-innovation_9789264265820-en#.WXdyzTPkWYk#page5.

[5] These effective expressions are used by R. Bin, Soft law no law, available at www.robertobin.it/ARTICOLI/Softlaw.pdf.

[6]The lobbying activities carried out by international non-governmental organisations such as Transparency International have an important impact on the development of anti-corruption law. For further information anti-corruptionon the role of NGOs see I. Carr - O. Outhwaite, The Role of Non-Governmental Organizations (NGOs) in Combating Corruption: Theory and Practice, in Suff. Univ. Law Rev., 2011, pp. 615 ss. The role of businesses, in particular global businesses in the prevention of corruption overlaps with the various initiatives that come under the category of «businesses and human rights»: among which, see United Nations Global Compact (GC) 2000, at the wesbite www.unglobalcompact.org/what-is-gc. See also the declaration of undertakings made by the Business 20 (B20) group on the prevention of corruption, a forum which gives voice to businesses and other economic players from the G20 participating countries (www.worldsmeforum.org/wp-content/uploads/2016/12/2016-30-11_B20-Factsheets_all.pdf). For a more in-depth analysis of the work of B20 see M. Mantovani, Raccomandazioni del gruppo di lavoro del B20 sull’anticorruzione e sulla trasparenza, in Dir. Comm. Int., 2012, pp. 671 ss.

[7] See the FMI document, Corruption: costs and mitigating strategies, edited by the Staff Team from the Fiscal Affairs Department and the Legal Department, May 2016, available at www.imf.org/external/pubs/ft/sdn/2016/sdn1605.pdf; the OECD document, Corruption and Economic Growth, available at www.oecd.org/g20/topics/anti-corruption/Issue-Paper-Corruption-and-Economic-Growth.pdf; European Commission, European semester, Thematic Factsheet – Anti-corruption, (2016), available at ec.europa.eu/info/files/european-semester-thematic-factsheet-corruption-2016_en. On the fall-out on European integration see S. Mangiameli (ed.), The consequences of the crisis on European Integration and on Member States, Cham 2017.

[8] There is extensive academic literature on the topic of soft law. See B. Boschetti, Soft Law e normatività. Un’analisi comparata, in Riv. Reg. Mercati, 2, 2016 and the bibliography provided therein; interesting considerations on soft law provided by the Italian Anti-corruptionAnti-corruption Authority, S. Valaguzza, La regolazione strategica dell’Autorità nazionale Anticorruzione , in Riv. Reg. Mercati, 1, 2016.

[9] OECD, Recommendations of the Council on Bribery in International Business Transactions, OECD Doc. No. C(94)75/Final (27 May 1994), available at www.oecd.org/investment/anti-bribery/anti-briberyconvention/1952622.pdf, subsequently revised in 1997 and implemented in 2009; see also the OECD Recommendations on Tax Deductibility of Bribes to Foreign Officials, OECD Doc. No. C(96)271/Final (11 April 1996).

[10] The full text is available on the site of the European Council. The principles are a typical example of international soft law which were incorporated into The Convention of the European Council against corruption in 1999 (Criminal Law Convention on Corruption, which came into force in 2002). Conventions such as these can generate significant contamination in relation to soft and hard law both once they have been adopted but before they have come into force.

[11] Both the FMI and the World Bank adopted their own anti-corruption policies in1997.

[12] For the principal OECD documents on soft law see note no. 5 above. For details of the soft lawof the Organization of American States and the African Union, see E.K. Davis., Does the Globalization of Anti-corruption Law Help Developing Countries?, in J. Faundez - C. Tan (eds.), International Economic Law, Globalization and Developing Countries, Cheltenham 2010, pp. 283 ss.

[13] E.U. Petersmann (ed.), Multilevel constitutionalism for multilevel governance of public goods, Oxford and Portland 2017; while there an is extremely vast collection of academic literature on “global” administration, the following are particularly recommended: B. Kingsbury - N. Krish - R. B. Stewart, The emergence of global administrative law, 2005, available at law.duke.edu/journals/lcp. All of the papers published in relation to the research project on Global Administrative Law (NYU School of Law Institute for International Law and Justice in conjunction with the Center on Environmental and Land Use Law) are available at www.iilj.org/global_adlaw; T. Zwart - G.Anthony - J.B. Auby - J. Morison, Values in Global Administrative Law, Oxford 2011, pp. 61 ss.; J.B. Auby, Globalization. Law and the State, Oxford 2017; S. Cassese, Research Handbook on global administrative law, Cheltenham - Northampton 2016.

[14] Covinghton & Burling LLP, Trends and Developments in Anti-Corruption Enforcement, 2015 available through the link Trends_and_Developments_in_Anti Corruption_Enforcement_Winter_2015.pdf, in which they draw attention to the growth of transnational cooperation in relation to anti-corruption practices (such as information exchange and strategic collaboration) especially since 2014. Almost all of the investigative procedures by the DOJ in relation to FCPA are multilateral. As recently demonstrated by the Assistant Attorney General: «We report schemes to one another. And, where appropriate, we discuss strategy and coordinate our use of investigative techniques, so that we can obtain the best possible results, especially in very high-impact cases»

[15] The reference to the Foreign Corrupt Practices Act in the United States Code is 15 U.S.C., §§ 78, lett. dd-1. A very useful aid in understanding the FCPA and its application to actual cases is the document prepared by the Criminal Division of the U.S. Department of Justice (DoJ), The Federal Corrupt Practices Act, available at www.justice.gov/sites/default/files/criminal-fraud/legacy/2015/01/16/guide.pdf. The FCPA applies to all American and foreign corporations that are subject to the supervision of the SEC. In the English legal system, there were some pre-existing pieces of legislation, which despite formal references to the prevention of corruption, were in substance aligned with the traditional repressive model ex post the corruptive acts and included the Public Bodies Corrupt Practices Act of 1889, the Prevention of Corruption Act of 1906 and the Prevention of Corruption Act of 1916. In the aftermath of the Poulson scandal in 1972, the Salmon Committee on Standards in Public Life recommended the Government adopt new anti-corruption measures, but the recommendation fell on deaf ears. Moreover, after the first report of the Committee on Standards in Public Life, set up by Major in 1994, the Home Office published a consultation document to review the measures on anti-bribery and anti-corruption in 1997. In 1998, the Law Commission published a report entitled Legislating the Criminal Code: Corruption. Both documents were harshly criticised by the OECD as they were seen to fall far short of international standards.anti-corruption

[16] The American institutions had requested the intervention of the international community before they adopted the FCPA: a resolution of the Senate in 1975 requested the adoption of an international Code of Conduct against «bribery, kickbacks, unethical political contributions and other such disreputable activities» (see S. Res. 265, 94th Cong., 1^st Sess. (1975)); in1976, a task force headed by Richardson (Secretary of Commerce) requested the adoption of an international treaty aimed at criminalizing public foreign officials «to assure that all nations, and the competing firms of different nations, are treated on the same basis» (thus in Foreign Payments Disclosure: Hearings Before the Subcomm. on Consumer Protection & Finance of the Comm. on Interstate & Foreign Commerce, 94^th Cong., 2^d. Sess., at 40, 46 (1976) (Report from the Richardson Task Force). US diplomacy worked hard to obtain an international response on the these topics, but instead only obtained some policy statements: the resolution of the Organization of American States of 10 July 1975; the resolution of the UN General Assembly (Res. 3514, entitled “Measures Against Corrupt Practices of Transnational and Other Corporations, Their Intermediaries and Others Involved” of 1974-76 and re-published in 1984; or the declaration of the UN General Assembly in 1975 condemning corruption in international transactions. Analogous efforts followed under the presidencies of Regan, Bush and Clinton. See further K.E. Davis, Does the Globalization of Anti-corruption Law Help Developing Countries?, cit., who observes how, after the Nixon scandal,«The FCPA is, of course, a creature of domestic law. Anti-corruption norms inspired by the FCPA became part of international law as a result of a campaign that involved a number of constituencies»; for a reconstruction of the “birth” of international anti-corruption law see the work of K. Abbott - S. Duncan, Values and Interests: International Legalization in the Fight against Corruption, in Jour. Leg. St, 31, 2002,pp. 141 ss.; P. W. Schroth, The United States and the International Bribery Conventions, in Amer. Jour. Comp. Law,50, 2002, 593 (Supp.) in which the authors say: «By early 1974, investigations […] had turned up evidence […] of numerous instances of illegal campaign contributions, of laundering of such money through foreign countries and of the use of campaign funds to bribe foreign officials. As a result of these disclosures, the Securities and Exchange Commission began its own investigation of illegal foreign payments by United States corporations. The reports of all these investigators and the GAO led to President Nixon's resignation, on 8 August 1974, but the corruption hearings continued».

[17] It emphasises how the ineffectiveness and vagueness of the accounting provisions contained in the OECD Convention ensured it did not have a significant impact on the US legal system, P. W. Schroth, The United States and the International Bribery Conventions, cited above.

[18] It is interesting to note how the US first ratified the OECD and then the OAS, as pursuant to article IX of the Convention, it was required to make provision for any similar measure to prevent the unlawful enrichment of public officials (on unlawful enrichment the Convention intended any:«significant increase in the assets of a government official that he cannot reasonably explain in relation to his lawful earnings during the performance of his functions»). For further discussion on this point see: P. W. Schroth, The United States and the International Bribery Conventions, cited above.

[19] These regulations have, instead, a wider scope of application and apply to all fraud cases.

[20] As has been noted in the academic literature, the rules on corporate governance of the FCPA have modified the SEC mandate «by giving that agency the means for regulating the internal management of domestic corporations. Thus, the FCPA heralds a new era». See also G. Crutchfield - D. Crutchfield, Responsibilities of Domestic Corporate Management Under the Foreign Corrupt Practices Act, in Syracuse L. Rev., 31, 1980, pp. 865 ss., pp. 866-867. The uniformity in the praxis applied by the FCPA has been assisted by the obligation (in force since 1987 for individuals and 1991 for corporations) placed on judges to apply strict federal guidelines. This obligation has drastically limited the discretion previously enjoyed by prosecutors and judges which permitted them to consider mitigating factors. See the Principles of Federal Prosecution of Business Organizations prepared by the DoJ and available at www.justice.gov/usam/usam-9-47000-foreign-corrupt-practices-act-1977.

[21] The reference is to the 15 U.S.C. 78ss-1(e); 78dd-2(f); 28 C.F.R. Part 80. The DoJ has an obligation to respond within 30 days and the assessment of non-involvement with respect to the case in question for the purposes of the FCPA gives rise to a rebuttable presumption of legality. Any action brought under the applicable provisions of  15 U.S.C.  78dd-1and  78dd-2, there shall be a rebuttable presumption that a requestor's conduct, which is specified in a request, and for which the Attorney General has issued an opinion that such conduct is in conformity with the Department's present enforcement policy, is in compliance with those provisions of the FCPA. Such a presumption may be rebutted by a preponderance of the evidence. In considering the presumption, a court, in accordance with the statute, shall weigh all relevant factors, including but not limited to whether information submitted to the Attorney General was accurate and complete and whether the activity was within the scope of the conduct specified in any request received by the Attorney General.  The opinions are published (names are omitted). The opinions can be found at www.usdoj.gov/criminal/fraud/fcpa/revindex.htm (opinions 1980-1992) or www.usdoj.gov/criminal/fraud/fcpa/opiindx.htm (opinions from 1993 onwards).

[22]Following the reform in 1998, today the provisions of the FCPA are applied also to foreign entities where the act is committed in the US. The extraterritorial effects of the FCPA (and the approval given in the Serbanes and Oxley Act, which aims at protecting investors in corporations that are subject to SEC supervision) and anti-corruption law in general are some of the reasons why the reforms in the field of anti-corruption law in France were delayed (i.e. Loi Sapin II, which will be referred to again at a later point). On the development and effects of the extraterritorial dimension on anti-corruption law see R. Brewster, S.W. Buell, The market for global anti-corruption enforcement, in Law and contemporary problems, no. 1/2017, 193.anti-corruptionanti-corruptionanti-corruption.

[23] One of the most famous specialized anti-corruption institutions anti-corruptionis the Independent Commission against Corruption in Hong Kong, set up in 1974. For an up-to-date analysis of the models see: OECD, Specialised Anti-Corruption Institutions: Review of Models: Second Edition, Paris 2013 available at dx.doi.org/10.1787/9789264187207-en (an update of the first edition published in 2008). The need for an adequate number of and competent personnel has already been emphasised in the final document issued by the First Conference for Law Enforcement Officers Specialised in the Fight against Corruption, held in Strasburg in 1996. On the European legal framework, the specialised approach has been influenced in particular by the Twenty Guiding Principles for the Fight against Corruption. On the special standards to be followed in enforcement and in the judicial application of anti-corruption law, see the document prepared by Transparency International entitled Anti-corruption specialization: law enforcement and courts, available at www.transparency.org/files/content/corruptionqas/Anti-corruption_specialisation_Law_enforcment_and_courts_2014.pdf.

[24] For an analysis of the key differences in the transposition of the OECD Convention in the various countries seeP. W. Schroth, The United States and the International Bribery Conventions, cit.; In relation to Italy, N. Parisi - D. Rinoldi, L’applicazione in Italia di strumenti giuridici internazionali contro la corruzione, Milano 2003.

[25] Uniformity is not achieved solely through the definitions, principles and obligations set out in the Conventions but also, and mainly, through soft law, which aims at transposing, actuating and respecting international anti-corruption law. anti-corruption. For further information see, note no. 5 above. For a study of the sociological theory behind social relations see P. Rosa, La svolta sociologica nelle relazioni internazionali: tre approcci e tre filoni di ricerca, Documents available from the Department of Sociology and Social Research, 2010, no. 48, available at web.unitn.it/files/quad48_completocopertine.pdf.

[26] With its monitoring implementation system note GRECO, Group of States against corruption.

[27] The first supplementary Protocol dates back to 1996 but it came into force in 2002. The second Protocol instead came into force in 2009.  For a complete reconstruction of the “regional” law in the area of anti-corruption law see P. Davis, Does the Globalization of anti-corruption law, cit., 6. There is also a series of reports prepared by the UK Department for International Development on the strategies adopted in certain countries in relation to anti-corruption, available at www.gov.uk/government/collections/anti-corruption-strategies-by-country.

[28] EU Directive 2017/1371 of the Parliament and Council of 5 July 2017 on using criminal law to the fight fraud that may damage the financial interests of the Union.

[29] For a recent study on the impact of commercial agreements between individual countries and geographic regions on the transnational dimension of anti-corruption law (for example TTIP or TPP), in which there is a progressive increase in regulatory and legal standards see: J. Mendes, The EU and the International Legal Order: the impact of international rules on EU administrative procedures, Note, the text of the Audience before the Committee of Legal Affairs of the European Parliament, Brussels, 24 February 2015, is available at www.europarl.europa.eu/cmsdata/72869/Mendes.pdf; R. B. Stewart, State Regulatory Capacity and Administrative Law and Governance under Globalization, IILJ Working Paper 2016/1, (MegaReg Series). The entire series of papers dedicated to the topic is available at MegaReg online. See also voelkerrechtsblog.org/category/symposium/megaregionals-and-the-others/. The transnational dimension is supported also by regulatory networks specialised in the prevention of corruption: ACAs Initiative, the Network for Integrity founded in 2016, the European Anti-corruption Network-EACN. In the European Union information exchange in the transnational sphere has been significantly strengthened following the decision of the European Council on 6 June 2011 (Brussels, 6.6.2011 C (2011) 3673 final) to implement a periodic reporting mechanism on the efforts of individual states in the area of anti-corruption (the so-called EU Anti-Corruption Report). Furthermore, in 2015 the European Commission proposed the introduction of an exchange programme for experiences of preventing corruption.

See further N. Parisi, La cooperazione giuridica internazionale nella lotta alla corruzione, Quaderni giuridici, Padova 1996;P. Szarek-Mason, The European Union’s fight against corruption: the evolving policy towards Member States and Candidate Countries, Cambridge 2010.

[30] The US FCPA is seen as the benchmark for new and even for more recent pieces of anti-corruption legislation: the UK Bribery Act which was approved in 2010 and came into force in 2011 was inspired by it. On the transnational effects of the FCPA see K.E. Davis, Does the Globalization of Anti-corruption Law Help Developing Countries?, cit., in which the author  notes:«To begin with, the US government and firms subject to the FCPA shared an interest in seeing other countries adopt legislation similar to the FCPA in order to level the playing field, in other words, to ensure that the FCPA’s constraints would not place US firms at a competitive disadvantage».

[31] The enforcement measures set out in the UK legislation were appraised for their conformity to the UN Convention. See the evaluation report available at  www.unodc.o