Bribery in public contracting is a serious problem, particularly in societies with weak public institutions. The trend in the law applicable to contracts between governments and foreign firms is to refuse to enforce contracts procured... more
Bribery in public contracting is a serious problem, particularly in societies with weak public institutions. The trend in the law applicable to contracts between governments and foreign firms is to refuse to enforce contracts procured through bribery and to bar the firm from recovery in restitution. This zero-tolerance approach may have perverse consequences. Proof that a firm obtained a contract through bribery does not necessarily indicate the extent to which the firm has fallen short of its obligations to combat bribery. The zero-tolerance approach fails to take into account the extent to which the firm has not only attempted to prevent bribery but also monitored and punished employees who engage in bribery, cooperated with law enforcement authorities, and created value for the government in the course of performing its side of the contract. Less compellingly, several commentators have complained that the zero-tolerance approach dilutes governments’ incentives to prevent their of...
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In the waning days of Barack Obama’s presidency, his opponents took every possible opportunity to criticize his performance. One of the more interesting attacks condemned the Obama Administration for allowing the United States to drop in... more
In the waning days of Barack Obama’s presidency, his opponents took every possible opportunity to criticize his performance. One of the more interesting attacks condemned the Obama Administration for allowing the United States to drop in the World Bank’s Doing Business rankings. A columnist at the Wall Street Journal lamented that after President Obama took office the United States fell from third to eighth place in the overall rankings.1 He went on to complain, “Eight years ago, 40 days were needed to get a construction permit. Now it’s 81. When President Bush left office, it took 300 days to enforce a contract. Today: 420. As for registering property, the cost has nearly quintupled since 2009, to 2.4% of property value from 0.5%.”2 The World Bank’s Doing Business indicators have many virtues, but they clearly are not good measures of the performance of the U.S. federal government, regardless of who is president. This is because the United States has a multilevel system of governan...
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The Regulation of Transnational Bribery by Kevin E. Davis, strips out the universal character of illegitimate payments used to bribe public officials of foreign countries in the milieu of international business which has been known for... more
The Regulation of Transnational Bribery by Kevin E. Davis, strips out the universal character of illegitimate payments used to bribe public officials of foreign countries in the milieu of international business which has been known for years. The manuscript deals with various definitions of bribery as a transaction in which an official misuse his or her office “as a result of considerations of personal gain, which need not be monetary”. The book highlights the current debate about prohibiting transnational bribery. Such a debate is not about the practicality or desirability of the United States’ FCPA, which at one time was the only law in the world that efficiently banned transnational bribery.
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Existem diferenças entre o direito privado dos países em desenvolvimento e o direito dos países desenvolvidos? A literatura frequentemente oferece uma das seguintes respostas: ou o direito dos países em desenvolvimento é antiquado e... more
Existem diferenças entre o direito privado dos países em desenvolvimento e o direito dos países desenvolvidos? A literatura frequentemente oferece uma das seguintes respostas: ou o direito dos países em desenvolvimento é antiquado e ineficiente, exigindo modernização, ou é perfeitamente adequado do ponto de vista formal, mas carece de efetividade. O presente artigo busca questionar essas visões ao apresentar como os tribunais da África do Sul e da Colômbia, assim como os brasileiros, têm buscado incorporar preocupações distributivas nas decisões em matéria de direito contratual – fenômeno que denominamos de “heterodoxia contratual”. O reconhecimento da heterodoxia contratual em países em desenvolvimento chama a atenção para as manifestações existentes, embora mais limitadas, do mesmo fenômeno em países desenvolvidos. Sugere-se que a desigualdade e a injustiça social persistentes minam as premissas que alicerçam a defesa do direito contratual ortodoxo, conduzindo a um renovado intere...
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What role should for-profit organizations play in governing commercial transactions? Recent scholarship on the privatization of commercial law has advocated expanding the role of for-profits. This essay tests the merits of that proposal... more
What role should for-profit organizations play in governing commercial transactions? Recent scholarship on the privatization of commercial law has advocated expanding the role of for-profits. This essay tests the merits of that proposal in a context where the case for relying on for-profits seem particularly strong, namely the adjudication of international commercial disputes. Both theory and evidence suggest that there is a role for providers of dispute resolution services that take a variety of organizational forms, including for-profits, not-for-profits, international organizations and various kinds of hybrid organizations.
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This essay addresses the question of whether there is any set of legal institutions that invariably promotes development. ‘Universalistic’ arguments answer this question in the affirmative. The essay begins by rehearsing classic... more
This essay addresses the question of whether there is any set of legal institutions that invariably promotes development. ‘Universalistic’ arguments answer this question in the affirmative. The essay begins by rehearsing classic objections to legal universalism. It then shows how those objections apply to even relatively sophisticated examples of legal universalism that can be derived from the Legal Origins school of thought, the Doing Business project, and advocacy of greater reliance on randomized controlled trials.
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Version ingles en la biblioteca: Coordinating the enforcement of anti-corruption law : South American experiences
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One of the most pressing challenges in anti-corruption law is whether and how to coordinate enforcement across multiple agencies, that is to say, under conditions of institutional multiplicity. One approach is modular enforcement, which... more
One of the most pressing challenges in anti-corruption law is whether and how to coordinate enforcement across multiple agencies, that is to say, under conditions of institutional multiplicity. One approach is modular enforcement, which involves dividing responsibility for enforcement among multiple institutions that are able, but not required, to coordinate their activities. The relatively impressive performance of Brazil’s anti-corruption agencies around the beginning of the twentieth century has been attributed to this kind of institutional modularity. We examine whether other similarly situated countries adopted the Brazilian approach. Specifically, we compare the extent to which the modular approach to anti-corruption enforcement was reflected in the national anti-corruption institutions of Brazil and five other South American countries as of 2014. We find little evidence that Brazil’s neighbors adopted the modular approach and suggest a variety of political, intellectual and i...
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Debates over whether transnational and international legal institutions are fair, effective, or legitimate responses to corruption of local public officials have an important empirical dimension. We use case studies to examine whether... more
Debates over whether transnational and international legal institutions are fair, effective, or legitimate responses to corruption of local public officials have an important empirical dimension. We use case studies to examine whether foreign legal institutions serve as fair, effective, and legitimate complements to local anticorruption institutions. We refer to this set of claims as the “institutional complementarity theory.” The first case study centers on proceedings concerning bribes paid by subsidiaries of Siemens AG, a German company, to obtain and retain a contract to provide national identity cards for the Argentine government. The second case study examines events stemming from overbilling in the construction of a courthouse in Brazil. Analysis of these cases suggests that the institutional complementary theory is credible. At the same time, the findings suggest that local institutions have greater potential, and foreign institutions have more limited potential, than the th...
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... By this process the West injects life into assets and makes them generate capital. Third ... The institutions that give life to capitalthat allow one to secure the interests of third parties with work and assetsdo not exist here. To... more
... By this process the West injects life into assets and makes them generate capital. Third ... The institutions that give life to capitalthat allow one to secure the interests of third parties with work and assetsdo not exist here. To ...
Debates over whether transnational and international legal institutions are fair, effective, or legitimate responses to corruption of local public officials have an important empirical dimension. We use case studies to examine whether... more
Debates over whether transnational and international legal institutions are fair,
effective, or legitimate responses to corruption of local public officials have an important
empirical dimension. We use case studies to examine whether foreign legal institutions
serve as fair, effective, and legitimate complements to local anticorruption institutions.
We refer to this set of claims as the “institutional complementarity theory.” The first case
study centers on proceedings concerning bribes paid by subsidiaries of Siemens AG, a
German company, to obtain and retain a contract to provide national identity cards for
the Argentine government. The second case study examines events stemming from
overbilling in the construction of a courthouse in Brazil. Analysis of these cases suggests
that the institutional complementary theory is credible. At the same time, the findings
suggest that local institutions have greater potential, and foreign institutions have more
limited potential, than the theory assumes.
effective, or legitimate responses to corruption of local public officials have an important
empirical dimension. We use case studies to examine whether foreign legal institutions
serve as fair, effective, and legitimate complements to local anticorruption institutions.
We refer to this set of claims as the “institutional complementarity theory.” The first case
study centers on proceedings concerning bribes paid by subsidiaries of Siemens AG, a
German company, to obtain and retain a contract to provide national identity cards for
the Argentine government. The second case study examines events stemming from
overbilling in the construction of a courthouse in Brazil. Analysis of these cases suggests
that the institutional complementary theory is credible. At the same time, the findings
suggest that local institutions have greater potential, and foreign institutions have more
limited potential, than the theory assumes.