Indeed, the ATCA approach is far from the ideal of human rights standards applying equally
to all persons around the world. After all, why should today’s global citizens suffer disparate
enforcement of their rights, with redress available only in limited jurisdictions that in any event
are applying a variant of law originally designed to address actions of different (i.e., state)
actors?
Corporations could ask similar questions: Why should competing companies be held to different standards, with those having ties to jurisdictions that value freedoms confronting costs
that others do not, and with a state applying standards to them that it has failed to require the
intended subjects (i.e., its treaty partners) to follow?
International Antibribery Conventions
Of course, the idea of holding corporations to account in one jurisdiction for actions done
elsewhere is not new, and valuable lessons for the filtering context can be learned in particular
from past attempts to promote ethical behavior among corporations acting internationally. In
particular, a hybrid process involving both domestic and international enforcement has developed in recent years in another area pertaining to ethical behavior of private actors, namely, in
the area of bribery. Antibribery conventions represent the one area where binding rules have
been put in place by states acting jointly to regulate responsibilities of transnational corporations and related business enterprises with regard to human rights.
62
The fight against bribery stands out for its lessons on the futility of single-country attempts
to hold companies accountable at the domestic level for their international activities, on the
one hand, and the success of broader-based efforts to do so in multiple jurisdictions acting in concert, on the other hand. In 1977 the U.S. Congress passed the Foreign Corrupt
Practices Act (FCPA) to make it a crime for U.S. corporations to offer bribes for international contracts. While the FCPA may have given a company a credible reason to refuse to
comply with a foreign official’s demand for a bribe, that company ended up losing contracts
to foreign competitors who not only were permitted to pay this extra expense but also
were allowed to take a tax deduction for it. Simply stated, the FCPA put U.S. companies at
a tremendous disadvantage vis-a `-vis others in their global activities involving foreign direct
investment.
At the time, most foreign direct investment was flowing from countries that were members
of the Organisation for Economic Co-operation and Development (OECD). As corporations
began to be plagued by international corruption scandals and increasingly large bribery
demands in the 1980s and early 1990s, there was a political willingness in the OECD to join
the United States in standing against corruption. The OECD and five nonmember countries
63
adopted the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Anti-Bribery Convention) in 1997.
64 By doing so together, these countries
agreed to hold their companies to a common standard and so helped to level the playing field
for more ethical conduct. They also adopted the Revised Recommendations of the Council on
94
Mary Rundle and Malcolm Birdling
to all persons around the world. After all, why should today’s global citizens suffer disparate
enforcement of their rights, with redress available only in limited jurisdictions that in any event
are applying a variant of law originally designed to address actions of different (i.e., state)
actors?
Corporations could ask similar questions: Why should competing companies be held to different standards, with those having ties to jurisdictions that value freedoms confronting costs
that others do not, and with a state applying standards to them that it has failed to require the
intended subjects (i.e., its treaty partners) to follow?
International Antibribery Conventions
Of course, the idea of holding corporations to account in one jurisdiction for actions done
elsewhere is not new, and valuable lessons for the filtering context can be learned in particular
from past attempts to promote ethical behavior among corporations acting internationally. In
particular, a hybrid process involving both domestic and international enforcement has developed in recent years in another area pertaining to ethical behavior of private actors, namely, in
the area of bribery. Antibribery conventions represent the one area where binding rules have
been put in place by states acting jointly to regulate responsibilities of transnational corporations and related business enterprises with regard to human rights.
62
The fight against bribery stands out for its lessons on the futility of single-country attempts
to hold companies accountable at the domestic level for their international activities, on the
one hand, and the success of broader-based efforts to do so in multiple jurisdictions acting in concert, on the other hand. In 1977 the U.S. Congress passed the Foreign Corrupt
Practices Act (FCPA) to make it a crime for U.S. corporations to offer bribes for international contracts. While the FCPA may have given a company a credible reason to refuse to
comply with a foreign official’s demand for a bribe, that company ended up losing contracts
to foreign competitors who not only were permitted to pay this extra expense but also
were allowed to take a tax deduction for it. Simply stated, the FCPA put U.S. companies at
a tremendous disadvantage vis-a `-vis others in their global activities involving foreign direct
investment.
At the time, most foreign direct investment was flowing from countries that were members
of the Organisation for Economic Co-operation and Development (OECD). As corporations
began to be plagued by international corruption scandals and increasingly large bribery
demands in the 1980s and early 1990s, there was a political willingness in the OECD to join
the United States in standing against corruption. The OECD and five nonmember countries
63
adopted the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Anti-Bribery Convention) in 1997.
64 By doing so together, these countries
agreed to hold their companies to a common standard and so helped to level the playing field
for more ethical conduct. They also adopted the Revised Recommendations of the Council on
94
Mary Rundle and Malcolm Birdling