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Lessons From The Slave Trade

Professor Elizabeth Spahn’s new scholarship on competing enforcement of antibribery laws has just been published. We’ve been a fan of Prof Spahn for a long time. But her new work kicks our admiration up a notch or two.

Her paper grew out of a symposium on global enforcement conflicts hosted in February by the Virginia Journal of International Law.

She begins by comparing ‘the evolution of modern global anti-bribery law reforms to the abolition of the 19th Century slave trade.’ (She calls the analogy ‘something of a trope in modern corporate compliance discourse;’ her article, however, was the first time we’d heard the comparison.)

‘The central point of the analogy,’ she writes, ‘is that norms regarding acceptable business practice change over time, often in response to political pressures, changing the laws and altering risk.’

She continues:

In the case of the transatlantic slave trade, this shift occurred although the underlying business model itself was highly profitable; some powerful merchants across the globe opposed the shift and perhaps most interesting for our purposes, not all nations made the shift at the same time or with the same degree of enthusiasm. Portugal and Spain, for example, were reluctant while the Dutch were less so. France’s participation varied considerably.

Sound familiar?

In a post last year, we talked about the coming chaos in global enforcement as more countries enact long-arm antibribery laws, and compete to enforce them.

About modern antibribery enforcement, Prof Spahn says:

Potentates accustomed to receiving bribes, like some African tribal chiefs who profited from the slave trade, resist disruption to their private revenue streams. Nation states vary widely in their commitment and ability to enforce anti-bribery laws on ‘national champion’ powerful corporations that they hope might provide jobs and campaign contributions at home. Whether anti-bribery reforms will take root globally is not certain. As Chinese Premier Zhou Enlai apparently did not, but could have, said of the French Revolution, it really is too soon to tell.

That’s great writing about a troubling issue racing toward us like a slave ship under full sail.

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Elizabeth Spahn’s Multi-Jurisdictional Bribery Law Enforcement: The OECD Anti-Bribery Convention (March 15, 2012), Virginia Journal of International Law, Vol. 53, No. 1, 2012 is available at SSRN here.

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