Comparative Analysis of Legal Responses to Corporate Bribery

Introduction

White collar crime was defined famously by sociologist Edwin Sutherland as the “crime committed by a person of respectability and high social status in the course of his occupation.” While the scope of white collar crimes is vast, this research is limited only to bribery. Bribery as a white collar crime will be considered in the context of corporate bribery in order to delimit the area of research further and focus on a specific area of white collar crime and how legal responses are structured in two different jurisdictions.

Research Plan

Research Objectives

• To explore the legal responses to bribery and corruption as white collar crimes in the USA and the UK;
• To compare and contrast these legal responses to bribery and corruption as white collar crimes in the USA and the UK;
• To critically analyse UK laws on the basis of the comparative analysis with American laws on bribery and corruption as white collar crimes.

Research Strategy

The research will be conducted with the doctrinal legal research method as the research is to be conducted as a comparative and critical study on the laws in the US and UK that respond to bribery and corruption as white collar crimes. The doctrinal legal research method is appropriate for such research because the focus is on the identification and analysis of legal and factual issues related to law. Doctrinal legal research method is a part of the qualitative approach, in which the researcher forms research questions and then locates and analyses the data related to the formulated research questions. As a part of this research method, both primary and secondary sources are part of data collection; which means that primary sources of legislation, case law, treaties and EU law if applicable, as well as secondary sources found in books and journals, will be part of data collection. If there are any relevant commentaries and government reports related to the research question, then these can also be part of the data collection for a doctrinal legal research.

As this research involves a critical appraisal of laws in the UK and the US, a comparative legal research method is also involved in this research. A comparative legal research method is used when the researcher studies and compares the laws of two or more jurisdictions. This method allows the researcher to compare and contrast the legal responses on the same legal issue in the different jurisdictions. There are two parts to this process: the first is to identify and tabulate the laws and rules in the different jurisdictions, and the second is to compare the similarities and dissimilarities in the laws in different jurisdictions. The process will involve the descriptive comparative law and/or applied comparative law. Descriptive comparative law describes the variations between the laws of the different jurisdictions, and applied comparative law takes a more critical approach to the variations. As this research is concerned with a critical analysis of the laws responding to bribery and corruption in the US and the UK, both descriptive and applied comparative law will be used in this research.

Research Plan

This dissertation is tentatively divided into five principal chapters. The first chapter will provide the background of the researcher and provide the objectives and research questions, and discuss the research methodology that will be used to conduct research. The second chapter will contain a detailed literature review. This chapter will define the key terms and concepts involved in this research as well as detail the key theories as well as identify the regulatory framework related to anti-bribery and anti-corruption in both USA and the UK. The third chapter will discuss the American laws responding to bribery and corruption. The fourth chapter will discuss the English laws responding to bribery and corruption as white collar crimes. The fifth chapter will contain a comparative and critical discussion based on the third and fourth chapters. The final part of the dissertation will contain a conclusion based on the research questions.

Literature Review

The principal legislation response in the UK to bribery is in the enactment of the Bribery Act 2010. The Bribery Act 2010 defines bribery as the giving or the offering of bribes to foreign public officials as well as the giving or offering of bribes to private individuals. Moreover, the Bribery Act 2010 penalises the soliciting or receiving of bribery by a public official or private citizen. The Bribery Act 2010 is generally considered to be the UK government’s implementation of the OECD Anti-Bribery Convention. There was some criticism of the UK government for its failure to implement the provisions of the OECD Anti-Bribery Convention for over 10 years since the Convention was adopted. There are two general offences related to bribery under the Act, which are, offering, promising or giving of a bribe (bribery); and the requesting, agreeing to receive or accepting of a bribe (passive bribery). The bribery laws are enforced by the Serious Fraud Office (SFO), which is the only state agency with national jurisdiction over these offences. Investigator agencies assist the SFO with the investigations and prosecution. One of the challenges reported in literature with respect to the legal responses to bribery in the UK is the transnational and expensive nature of the investigations.

The United States has responded to bribery and corruption as white collar crimes through a host of measures. For instance, whistleblowing laws have been developed in the USA to enable individuals to report corrupt practices or individuals in organisations.

A common feature in the US and the UK with respect to legal responses to bribery and corruption is the use of Deferred Prosecution Agreements (DPAs). While DPAs have been used in the US for a long time, in the UK, DPAs were introduced by the Crime and Courts Act 2013, Schedule 17. In the US, DPA allows prosecutor and accused individual to enter into an agreement whereby the accused individual agrees to certain conditions in exchange for deferment of prosecution. In the UK, a DPA can only be entered into between the prosecutor and an organisation facing prosecution for bribery or corruption. While DPAs have come under criticism in the UK for their ability to defer prosecutions, there are still crucial areas in which UK offers a better DPA system as compared to the US. First, US DPAs can be issued to individuals as well, which is not the case in the UK. Therefore, the scope of DPAs in the UK is much narrower as compared to the US. Second, there is little judicial involvement in the process for reaching agreement for DPA in the US, which means that there is no judicial oversight, which is not the case in the UK. In the context of white collar crimes, particularly corruption, DPAs have been welcomed because these allow prosecuting authorities to pursue complex investigations by getting the organisations to cooperate as part of the agreement.

Conclusion

The conclusion of this research will be focused on answering the specific questions that are raised in the beginning of this research.

Bibliography

Books

Barkow AS and Barkow RE, 'Introduction', in Anthony S Barkow and Rachel E Barkow, Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct (New York and London: New York University Press 2011).

Dobinson I and Johns F, “Qualitative Legal Research” in Mike McConville (ed.), Research Methods for Law (Edinburgh: Edinburgh University Press 2007).

Grimes J, Niblock R and Madden L, Corporate Criminal Liability in the UK: the introduction of deferred prosecution agreements (Association of Corporate Counsel 2013).

Gutteridge HC, Comparative law: an introduction to the comparative method of legal study and research. Vol. 1 (CUP Archive 2015).

McConville M and Chui WH, “Introduction and Overview” in Mike McConville (ed.), Research Methods for Law (Edinburgh: Edinburgh University Press 2007).

Payne B, White-Collar Crime: The Essentials (London: Sage 2016).

Willis JW and Jost M, Foundations of Qualitative Research: Interpretive and Critical Approaches (Thousand Oaks: Sage 2007).

Walliman N, Social Research Methods: The Essentials (London: Sage 2015).

Journals

Lord N, Regulating Corporate Bribery in International Business: Anti-corruption in the UK and Germany (Ashgate Publishing Ltd. 2014).

Lord N, ‘Responding to transnational corporate bribery using international frameworks for enforcement: Anti-bribery and corruption in the UK and Germany’ (2014) 14(1) I 100.

Rose C, 'The UK Bribery Act 2010 and Accompanying Guidance: Belated Implementation of the OECD Anti-Bribery Convention' (2012) 61 (2) International & Comparative Law Quarterly 485.

Schultz D and Harutyunyan K, ‘Combating corruption: The development of whistleblowing laws in the United States, Europe, and Armenia’ (2015) 1(2) International Comparative Jurisprudence 87.