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Stephan on Transborder Antibribery Law

Paul B. Stephan from University of Virginia School of Law has posted recently on SSRN an article titled Antibribery Law, which will constitute a chapter of the book Challenges to the International Legal Order, edited by David L. Sloss. The book is supposed to be published by Oxford University Press in 2021. The article may be downloaded here.

The abstract reads as follows:

The first part of this chapter describes the rise of transborder antibribery law in this century against the background of its twentieth century origins. It focuses on the role of a hegemon, namely the United States, and the impact of its conduct on other rich-world states. During the last century, other states passively resisted U.S. initiatives. Then, at the dawn of the new century, some undertook their own antibribery programs in response to U.S. regulation. At the international level, this response took the form of treaties accepting national regulation but not parceling out primary regulatory jurisdiction among states. Cooperation among prosecutors grew, but almost entirely through informal mechanisms. What resulted is a remarkably robust regulatory regime with almost all of the action occurring at the national level.

The next two parts ask why this kind of international cooperation unfolded as it did. The first focuses on striking parallels between the development of transborder antibribery enforcement and the rise of transborder anticartel law a generation earlier. International cooperation exists, but through informal fora and other contacts among prosecutors, rather than by the creation of international legal obligations and international institutions to administer them. As with the later antibribery project, anticartel policy thrived through the scaling back of international-law-based claims about the limits of prescriptive jurisdiction, not through creation of new international institutions. 

Part III then explores the political economy of transborder antibribery law. It considers why states regulate behavior that, as a first-order matter, harms foreigners while enriching domestic firms (unlike anticartel policy, which focuses on injury to domestic consumers). It rebuts arguments that altruism and a cosmopolitan sense of justice motivates states. Rather, this regulation, like the earlier anticartel actions, can best be explained as an effort to save the system of global markets, international business and investment, and transnational private ordering from itself. States have come to embrace these efforts, but have not sought to enforce them through international law. This approach instead puts the onus on powerful states acting as norm entrepreneurs to promote the rule of domestic law internationally.

On balance, the development of antibribery law during this century suggests a process of evolutionary adaptation, not revolutionary change and disruption. The paper considers, however, whether the forces that have undone the liberal internationalist aspirations of the 1990s pose a threat to the contemporary transborder antibribery regime. That transborder antibribery efforts have prospered during this period of unrest may indicate something about the resilience of global capitalism, but is not proof of the durability of the liberal international order that existed at the end of the twentieth century.

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