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Between Impunity And Imperialism: The Regulation Of Transnational Bribery - 2 October 2020

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When people pay bribes to foreign public officials, how should the law respond? This question has been debated ever since the enactment of the U.S. Foreign Corrupt Practices Act of 1977, and some of the key arguments can be traced back to Cicero in the last years of the Roman Republic and Edmund Burke in late eighteenth-century England.

In recent years, the U.S. and other members of the OECD have joined forces to make anti-bribery law one of the most prominent sources of liability for firms and individuals who operate across borders. The modern regime is premised on the idea that transnational bribery is a serious problem which invariably merits a vigorous legal response. The shape of that response can be summed up in the phrase "every little bit helps," which in practice means that: prohibitions on bribery should capture a broad range of conduct; enforcement should target as broad a range of actors as possible; sanctions should be as stiff as possible; and as many agencies as possible should be involved in the enforcement process. An important challenge to the OECD paradigm, labelled here the "anti-imperialist critique," accepts that transnational bribery is a serious problem but questions the conventional responses.

This book uses a series of high-profile cases to illustrate key elements of transnational bribery law in action, and analyzes the law through the lenses of both the OECD paradigm and the anti-imperialist critique. It ultimately defends a distinctively inclusive and experimentalist approach to transnational bribery law.

About the Speakers

Kevin E. Davis is Beller Family Professor of Business Law at New York University School of Law. His current research focuses on contract law, anti-corruption law, and the general relationship between law and economic development. Before entering academia, Professor Davis served as Law Clerk to Justice John Sopinka of the Supreme Court of Canada and was an associate in the Toronto office of Torys, a Canadian law firm. From 1996-2004 he was an assistant and then an associate professor at the University of Toronto. He also has held visiting positions at the University of Southern California, Cambridge University’s Clare Hall, the University of the West Indies (Cave Hill), Fundação Getúlio Vargas, São Paulo and the University of Toronto.

Jeremy Horder is Professor of Criminal Law at The London School of Economics. His research interests include history, philosophy and politics of English criminal law, and criminal law reform, more particularly, homicide, bribery and corruption, and the intersection of criminal law and other forms of sanction. Professor Horder was a Research Fellow at Jesus College, Oxford, from 1987-1989, and the Porjes Trust Tutorial Fellow in Law at Worcester College, Oxford, from 1989-2010. He was Chairman of Oxford’s Faculty of Law from 1998-2000. From 2005-2010, he was a Law Commissioner for England and Wales, with responsibility for criminal law reform, before becoming Edmund Davies Professor of Criminal Law at King’s College London, from 2010-2013. He is an Honorary Bencher of the Middle Temple and holds an Honorary LL.D from the University of Hull.

James Mather is a barrister at Serle Court. He won ‘Insolvency Junior of the Year’ at the Legal 500 Bar Awards 2018. His areas of expertise include insolvency, partnership and shareholder disputes; commercial fraud and asset recovery; and domestic and offshore trusts matters. Recent significant cases include two sets of proceedings arising out of the corrupt sale of Formula One; the leading Court of Appeal authorities on, respectively, the law of privilege in personal insolvency and the threshold test for obtaining security for costs; and a Privy Council decision on a novel point of BVI company law and a Commercial Court decision on the scope of the court’s power to grant urgent injunctive relief in support of arbitration proceedings.

Alun Milford is a highly experienced criminal lawyer. He specialises in serious or complex financial crime, proceeds of crime litigation and corporate investigations. He has particular knowledge and experience of issues surrounding corporate crime and deferred prosecution agreements. He joined Kingsley Napley from the public sector where, over a twenty-six year career as a government lawyer and public prosecutor, he worked in a wide variety of roles including General Counsel at the Serious Fraud Office, the Crown Prosecution Services’ Head of Organised Crime, its Head of Proceeds of Crime and Revenue and Customs Prosecutions Office’s Head of Asset Forfeiture Division. He also worked as a prosecutor in central London and a lawyer in the Attorney General’s Office.

About the Chair

Prabha Kotiswaran is Professor of Law & Social Justice at King's College London. Her main areas of research include criminal law, transnational criminal law, sociology of law, postcolonial theory and feminist legal theory. She has authored Dangerous Sex, Invisible Labor: Sex Work and the Law in India (Princeton 2011, winner of the 2012 SLSA-Hart Prize for Early Career Academics), co-authored Governance Feminism: An Introduction (Minnesota 2018, with Janet Halley, Rachel Rebouché and Hila Shamir) and edited Sex Work (Women Unlimited, Delhi 2011), Towards an Economic Sociology of Law (Wiley 2013, with Amanda Perry-Kessaris and Diamond Ashiagbor), Revisiting the Law and Governance of Trafficking, Forced Labor and Modern Slavery (Cambridge, 2017) and Governance Feminism: Notes from the Field (Minnesota 2019, with Janet Halley, Rachel Rebouché and Hila Shamir).

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