English Judges: Little Mice in the Big Business of Corruption?
The civil consequences of corruption in international commercial contracts are poorly mapped under English private law, despite the economic importance of English law in governing international contracts. England seeks to balance protecting the main economic transaction (eg the main infrastructure project, the main provision of goods) benefitting the principal (eg a foreign public authority) with harsh treatment of the corrupting transaction itself, ie the transaction between the bribe-giver and the bribe-taker. The starting point in English law for addressing corruption is the relationship between the principal and its agent. Even though the Bribery Act 2010 moved away from this principal/agent relationship to address corruption from a criminal law perspective, the UK Supreme Court relied on this principal/agent relationship in FHR European Ventures LLP v Cedar Capital Partners LLC, where it held that the agent held the product of corruption in trust for his principal. The question remains whether such financial adjustments developed by the judges are a sufficient punishment or deterrence against corruption. They may offer a clear and simple answer signalling clearly that English judges disapprove of corruption as a serious evil. However, as a matter of public policy, a range of other techniques may need to be developed to discourage corruption in a more systematic way among all the parties involved, the bribe-giver included.