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French lessons: How about some strategic enforcement competition?

Even the most ardent Francophile, as I most assuredly am, must be dismayed by France’s abysmal record of bribery prosecutions. Recent OECD Anti-Bribery Convention Working Group reports reveal France’s inexorable zero. While France has contributed significantly to the global anti-corruption regime through its part in seizing Obiang family assets as well as referring evidence in the KBR cases to the U.S., nevertheless when it comes to prosecuting its own French based multinationals, France is failing.

This failure may be attributable to excessive complexities in French criminal procedures, especially interlocutory appeals of individual discovery orders, making prosecutions more difficult than in other jurisdictions. Or perhaps political pressures or national pride render French prosecutors impotent in the face of French national champion multinationals. We will all benefit if those better versed in French law and politics than I are able to assess whatever domestic difficulties France suffers from and proposed specific cures.

We need not wait for France to find its own cures however. Happily for the global anti-corruption regime, the OECD Anti-Bribery Convention establishes a stronghold for effective enforcement remedies, particularly on the problem of enforcement laggards. While the Convention diplomatically stresses enforcement cooperation, the reality is that it also facilitates enforcement competition.

The BAE cases are the classic example of Convention partners engaging in strategic enforcement competition, not in some nationalistic one upmanship game, nor primarily for a competing nation to capture vast fines as is sometimes suggested by cynics. In the BAE cases, British prosecutors were stymied by direct political pressure from Prime Minister Tony Blair. Multinational corporations by definition no longer confine operations to one OECD Convention member state. Thus the U.S. had jurisdiction as well and was able to prosecute, thereby strengthening the prosecutorial hand inside of Britain. The BAE cases famously led to the eventual amendment of British law and the enactment of the UK Bribery Act. BAE itself was fined by both jurisdictions, although it escaped debarment.

The pattern is established, and it appears to be France’s turn to benefit from some strategic enforcement competition from another Convention member state. U.S. and French relations have been sadly strained since our glorious days of the Marquis de Lafayette’s invaluable help, not to mention the French navy, which enabled the United States to win its independence. Perhaps the U.S. would not be the first choice for strategic enforcement competition to assist France. Britain and Germany, also strong Convention enforcers, have their own historic difficulties with France. My nomination goes to one of the Scandinavians, perhaps Norway which has experience with prosecuting oil companies, or even one of the newer Eastern European member states which might benefit from the experience. The Convention Working Group can provide technical assistance.

Willing or not, French based multinationals are likely to learn soon that the ancien regime of international bribery based business models is over. With a little help from their friends, France will join the modern global trade world in which business is not accomplished by bribing elites abroad while the people suffer in poverty.  Vive la France.

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Elizabeth Spahn is a Contributing Editor of the FCPA Blog. For a more detailed analysis of OECD Anti-Bribery Convention enforcement competition see, Multijurisdictional Bribery Law Enforcement:  The OECD Anti-Bribery Convention, 53 Virginia J. Int’l L.  1 (2012).

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