Friday, February 8, 2019
Andrew Bulovsky (University of Michigan Law School - JD Candidate Author) has posted On Proportionality and Predictability: Evaluating Solutions to Overlapping Liability and Multi-Jurisdictional Disgorgement in International Anti-Corruption Enforcement (Michigan Journal of International Law, Vol. 40, 2019, Forthcoming) on SSRN. Here is the abstract:
As business increasingly cuts across national borders — and countries implement and enforce anti-corruption regimes aggressively — companies find themselves subject to liability in multiple jurisdictions. While fighting corruption is a normatively valuable goal, overlapping liability makes it difficult for a company to determine the extent of its potential liability. This lack of predictability has unintended consequences: it undermines the international business environment and over-deters beneficial behavior, such as investing in the developing world. Scholars have articulated an interest in creating a formal mechanism to solve this problem, but they have yet to adequately describe the basic provisions such a mechanism would contain. As such, this note is a first attempt to articulate the elements of an effective solution.
Specifically, this note proposes (1) a presumption that the country with the strongest jurisdictional ties to the allegedly unlawful activity will commence the anti-corruption action, (2) a multi-jurisdictional prohibition against double jeopardy, and (3) a commitment to seeking proportional punishment, including limiting disgorgement to the calculable amount of ill-gotten gains. This note argues that this mechanism should be housed in a series of bilateral agreements — similar to those seen in international antitrust enforcement. As such, this note takes a pragmatic and innovative approach to balancing over- and under-regulation in the anti-corruption context.