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We're Not Powerless Given that grand corruption is a disaster both in material and in moral terms,
what can be done about it? It would be unrealistic to imagine that it can ever
be eliminated. But there are now groups of people in many countries, working
with TI, who believe that it can be greatly reduced. According to Jeremy Pope,
TI's managing director, corruption must be turned from a low-risk, high- profit
business into a high-risk, low-profit one. The first weapon must be criminal law. The 1977 US Foreign Corrupt Practices
Act (FCPA) leaves the directors of US corporations in no doubt that if they
directly or indirectly bribe a foreign official or politician, they are just as
guilty
as if they had bribed a fellow US citizen. No other country has similar
legislation, but this should change before too long. The governments of the
OECD countries have all agreed—some with great reluctance—that cross-
border corruption should be made a criminal offense. While some English
lawyers have objected on the grounds that extraterritorial legislation is
repugnant to English law, their argument is now weak because Britain is
already bound by extraterritorial legislation against terrorism and
drug-trafficking. It will, however, certainly take some time to bring this
change into effect throughout the OECD countries. Some opponents of the FCPA argue it has been not been effective because
some US corporations still give bribes. However, the test of good legislation
should not be whether it is perfect but whether it has brought about significant
changes for the better. The FCPA undoubtedly passes that test. Its
effectiveness also deserves to be judged against the failure of other major
trading nations to enact similar legislation—which at times must have
tempted US exporters to take illegal action
to match their competitors. Criminalizing BriberyMaking bribery a crime will clearly have a marked effect on corporate
taxation. Until very recently the unintentional—and unacceptable—
situation existed in all European countries that offshore bribes, however
described, were tax-deductible as "business expenses," in effect
subsidizing bribery. All OECD countries are committed to changing this
situation; Britain has already done so. Although under the Anglo-Saxon
common law system the accused is innocent until proven guilty, the
same presumption does not apply in an argument with the tax authorities. Criminalization also changes the position of auditors. Given that an external
auditor has a clear duty to draw attention to the illegality of any payment
appearing in a company's accounts, his failure to do so puts him at risk of
being sued for negligence by any dissatisfied shareholder. TI International also has recently developed another interesting concept
called "Islands of Integrity," which involves the use of an Anti-Bribery Pact
(ABP) in major public contracts. The ABP commits all the parties to the
contract—the government officials and corporate executives, both of whom
sign the contract individually—not to solicit or offer any form of "inducement"
in connection with the specific contract. Penalties for corrupt activities found
to have broken the ABP include long-term black listing and rescission of any
contract awarded. Some may object to the "Islands of Integrity" device on the grounds that
those involved on both sides are doing no more than promising to do what
they should already be doing: not offering or receiving bribes. However, there
is evidence that a specific anti-bribery commitment in a specific project
contract that spells out special noncompliance sanctions is taken more
seriously by all parties than a general, all-embracing promise of good
behavior.