The Domestic and International Enforcement of the OECD Anti-Bribery Convention

International corruption law is a growing, if understudied, area of international economic law. This Article examines two aspects of governments\u27 enforcement of the OECD\u27s Anti-Bribery Convention. The first aspect is the member state\u27s efforts to enforce its own national legislation prohibiting foreign corruption within its territory and with regards to its nationals doing business abroad. The OECD Treaty\u27s obligation concerning member states\u27 enforcement of their own national legislation is somewhat ambiguous. While the obligation to pass particular national legislation is quite clear and specific, the treaty does not specify what resources that a state must dedicate to internally enforcing these laws. As a result, states may have robust anti-corruption laws on the books but fail to enforce them in a meaningful way. This is more than an abstract concern. As of 2013, less than half of the states party to the OECD Treaty had successfully prosecuted a private actor for foreign corruption. This Article also discusses a second aspect of enforcement: how these internal enforcement ambiguities hamper state-to-state efforts to enforce the agreement. States cannot easily identify whether other states are breaching the treaty\u27s obligations when the internal enforcement obligations are opaque. This complicates international efforts to pressure other states to increase their compliance through retaliation or reciprocity. This Article concludes by discussing enforcement alternatives, namely the continued rigorous American enforcement of anti-corruption policies against private actors, even for activities having minimal territorial ties

Rule-Based Dispute Resolution in International Trade Law

Why does the United States ever prefer to settle disputes under a system of rules rather than a system of negotiations? Powerful states are advantaged by negotiation-based approaches to settling disagreements because they have the resources to resolve individual disputes on favorable terms. By contrast, rule-based dispute resolution advantages weak states as a means to hold powerful states to the terms of their agreements. Then why did the United States want a rule-based system to settle international disputes in the WTO? To answer this question, we have to understand domestic politics as well as international politics. International constraints, particularly international courts, can influence bargaining at the national level by reallocating bargaining power among members of the government. This work addresses both the puzzle of the United States\u27 preference for rule-based dispute resolution and the broader implications for international law

Enforcing the FCPA: International Resonance and Domestic Strategy

The Foreign Corrupt Practices Act (“FCPA”), which bans corporations from offering bribes to foreign government officials, was enacted during the Watergate era’s crackdown on political corruption but remained only weakly enforced for its first two decades. American industry argued that the law created an uneven playing field in global commerce, which made robust enforcement politically unpopular. This Article documents how the executive branch strategically under- enforced the FCPA, while Congress and the President pushed for an international agreement that would bind other countries to rules similar to those of the United States. The Article establishes that U.S. officials ramped up enforcement only after the United States successfully concluded the Organization for Economic Co-operation and Development (“OECD”) Anti-Bribery Convention in 1997, twenty years after the enactment of the FCPA. Afterward, U.S. officials, desiring to maintain industry support for the FCPA, prosecuted both foreign and domestic corporations, thereby minimizing the statute’s competitive costs for American companies. This Article argues that the OECD Convention was critical to the dramatic expansion of FCPA enforcement because it allowed American prosecutors to adopt an “international-competition neutral” enforcement strategy, investigating domestic corporations and their foreign rivals alike. The existence of the treaty was decisive because it established anti-bribery as a binding legal principle and legitimized U.S. prosecutions of foreign corporations. Today, seven of the ten highest FCPA penalties have been against foreign corporations. This Article advocates, on a theoretical level, for a reevaluation of the multidirectional relationship between international and domestic law in transnational issue areas, such as foreign bribery. National laws are most often viewed as self-contained legal rules that develop or decline based on domestic officials’ policy decisions. The evolution of the FCPA, however, demonstrates that some statutes may require “international resonance” to be meaningfully enforced: a domestic statute can create pressure for national leaders to conclude an international agreement, and then that agreement provides the means for the national law to develop into a robust national policy. As this Article establishes, the OECD Convention owed its existence to the FCPA and, in turn, the FCPA owes much of its development and strength to the OECD Convention. A greater appreciation for international resonance’s feedback mechanisms is essential to understanding national enforcement of a wide range of transnational commercial, financial, and environmental statutes

Stepping Stone or Stumbling Block: Incrementalism and National Climate Change Legislation

This Article examines the effects of incremental domestic legislation on international negotiations to limit greenhouse gas emissions. Mitigating the effects of climate change is a global public good, which, ultimately, only an international agreement can provide. The common presumption (justified or not) is that national legislation is a step forward to an international agreement. This Article analyzes how national legislation can create a demand for international action but can also preempt or frustrate international efforts. The crucial issue, which has been largely ignored thus far, is how incremental steps at the domestic level alter international negotiations. This paper identifies four mechanisms that support the intuitive idea that national legislation will have positive effects: (1) allocating economic resources, (2) providing leadership in international negotiations, (3) creating a demand for a uniform standard, and (4) cultivating public opinion. This Article demonstrates that, on closer examination, each of these mechanisms could hinder international efforts to create a comprehensive agreement. This is by no means an argument against all efforts to curb greenhouse gas emissions at the national level. Instead, this Article calls for a more careful analysis the dynamic political impact of domestic proposals

Unpacking the State’s Reputation

International law scholars debate when international law matters to states, how it matters, and whether we can improve compliance. One of the few areas of agreement is that fairly robust levels of compliance can be achieved by tapping into states’ concerns with their reputation. The logic is intuitively appealing: a state that violates international law develops a bad reputation, which leads other states to exclude the violator from future cooperative opportunities. Anticipating a loss of future gains, states will often comply with international rules that are not in their immediate interests. The level of compliance that reputation can sustain depends, however, on how the government decision makers value the possibility of being excluded from future cooperative agreements. This Article examines how governments internalize reputational costs to the “state” and how audiences evaluate the predictive value of violating governments’ actions. The Article concludes that international law’s current approach to reputation is counterproductive, because it treats reputation as an error term that makes rationalists’ claims invariably correct

Supplying Compliance: Why and When the United States Complies with WTO Rulings

In studies of compliance with international law, the focus is usually on the “demand side” – that is, how to increase the pressure on the state to comply. Less attention has been paid, however, to the consequences of the “supply side” – who within the state is responsible for the compliance. This Article is the first study to systematically address the issue of how different actors within the United States government alter national policy in response to the violations of international law. The Article does so by examining cases initiated under the World Trade Organization (WTO) Dispute Settlement Understanding (DSU). This Article presents empirical evidence that who within the government must supply compliance is the most important factor in explaining both whether and when the United States government complies with WTO rulings, even after controlling for important characteristics of the state filing the request and the political importance of the affected industry. These results demonstrate that understanding the domestic supply of compliance is a critical, if neglected, aspect of international law theory. The results also highlight how the dominant “unitary actor” model (adopted by international law scholars to explain compliance) obscures important causal pathways in the compliance process. This Article opens up a new and rich field of study into what makes international law effective or ineffective