The Emergence of the Anti-Corruption Field

The United States passed the U.S. Foreign Corrupt Practices Act (FCPA) in 1977, following numerous investigations by the U.S. Securities and Exchange Commission (SEC) into the making by U.S. companies of questionable or illegal payments to foreign government officials, politi-cians, and political parties. Broadly speaking, the FCPA makes it a crime for any U.S. person or company to directly or indirectly pay or promise anything of value to any foreign official to obtain or retain business. The 1998 amendments expanded the FCPA to foreign companies and nation-als if they cause, directly or through agents, an act in furtherance of the corrupt payment to take place within the territory of the United States.

The FCPA also contains accounting provisions which require companies to maintain books and records that accurately and fairly reflect the trans-actions of the corporation, and to devise and maintain an adequate system of internal accounting controls.

The FCPA became the template for the Organisation for Economic Co-operation and Development (OECD) Convention on Combating Brib-ery of Foreign Public Officials in International Business Transactions, which was adopted in 1997. The Convention, currently with 39 parties, requires each State Party to make foreign bribery a crime. The Anti-Bribery Convention is overseen by the OECD Working Group on Anti-Bribery, which conducts a monitoring process on each ratifying country, focused on implementation and enforcement, and the steps which the country has taken to implement the working group’s recommendations from prior re-views.

The late 1990’s saw the introduction of numerous international conventions addressing corruption. These include: the Inter-American Convention against Corruption, the first multilateral anti-bribery initiative adopted one year prior to the OECD Anti-Bribery Convention; the Con-vention on the Fight against Corruption involving Officials of the Europe-an Communities or Officials of Member States of the EuropeEurope-an Union;

and the Council of Europe Criminal and Civil Law Conventions on

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ruption. This proliferation of conventions continued through the start of the 21^st century, with the African Union Convention on Preventing and Combating Corruption and the UNCAC, which became effective in 2005.

None of these conventions is self-executing, and each requires or urges the parties to take various actions to render illegal and deter various trans-national and domestic corrupt practices. Progress of countries in imple-menting their commitments under these conventions is assessed through periodic review mechanisms specific to each convention.

A purely linear focus on multilateral conventions, however, misses the multitude of other initiatives and actors working to constrain corrup-tion from the passage of the U.S. FCPA to where we presently sit in the first part of the 21^st century. These include the founding in 1993 of Trans-parency International, the global civil society coalition fighting corrup-tion. The Agreement on Government Procurement was signed in 1994, accompanying the signing of the Agreement Establishing the World Trade Organisation (WTO). Multilateral development banks and bilateral assis-tance providers seized on technical assisassis-tance to combat corruption in the late 1990’s as a must-do, following the collapse of the Russian economy in part due to its informal economy and a growing recognition of the per-vasiveness of corruption in both developing and formerly communist countries.

As has been noted by various commentators, including Slaughter, many issues requiring international cooperation are increasingly being ad-dressed through more informal law-making efforts and groups. These in-clude networks of government and non-government actors, such as regu-lators, professions, private sector businesses, industry associations, and non-governmental organisations (NGOs). The anti-corruption field is no stranger to this blurring of the roles between formal and informal net-works and outputs.

Numerous international working groups and initiatives now exist, all with the common belief that decreasing transnational, nation State, and private sector corruption is essential to their respective goals. These in-clude government driven groups, such as the G20 Anti-Corruption Work-ing Group and the Financial Action Task Force; private sector and civil society groups identifying best practices and codes of conduct to support private sector compliance with anti-corruption laws; and initiatives dedi-cated to ensuring that payments for the right to exploit natural resources end up in official public revenues. Table 1 provides an illustrative listing

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of some of the more prominent working groups and initiatives. The result is that combating corruption, including with approaches designed to in-crease transparency and accountability, is now viewed as an essential component of accomplishing a wide variety of global and national goals, including economic growth, poverty reduction, and re-building failed and weak States. Accompanying this is a steady cycle of assessment reports and convention reviews, action plans, new standards, and advocacy cam-paigns setting forth recommendations for an increasing number of areas of focus.

Conventions

 Inter-American Convention against Corruption (1996)

 OECD Anti-Bribery Convention (1997)

 Convention on the Fight against Corruption involving Officials of the European Communities of Officials of Members States of the EU (1997)

 Council of Europe: Criminal Law Convention on Corruption (1999)

 Council of Europe: Civil Law Convention on Corruption (1999)

 United Nations Convention Against Corruption (2005)

 African Union Convention on Preventing and Combating Corruption (2006)

Government Driven Initiatives

 Foreign Corrupt Practices Act (1977)

 U.S. Financial Action Task Force (1989)

 Stolen Assets Recovery Initiative (2007)

 G20 Anti-Corruption Working Group (2010)

 Open Government Partnership (2011) Sectoral Initiatives

 Extractive Industries Transparency Initiative (2002)

 Publish What You Pay (2002)

 International Aid Transparency Initiative (2005)

 Construction Sector Transparency Initiative (2007)

 Publish What You Fund (2008)

Private Sector-Government-Civil Society Initiatives

 International Chamber of Commerce Rules of Conduct to Combat Ex-tortion and Bribery (1996)

 United Nations Global Compact (2000)

 World Economic Forum Partnering Against Corruption Initiative (2003)

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 Transparency International Business Principles for Countering Bribery (2009)

 Business 20 Anti-Corruption Task Force (2010) Trade Initiatives

 WTO Working Group on Transparency in Government Procurement (1996)

 APEC Procurement Transparency Standards (2004)

 APEC Anti-Corruption Task Force (2004)

 Trans-Pacific Partnership (2006) Table 1: Representative Anti-Corruption Measures