A Solution Model for the Problem of “Ineffective Enforcement”
Current literature has reached a consensus on the utility of a monitoring system to guarantee effective enforcement of the OECD Anti-bribery Convention in signatories and the underperformance of the current OECD monitoring system. However, no effective analysis has been offered of structural flaws in the current OECD monitoring system that have caused the monitoring problem. This study argues that the surreptitious nature of transnational bribery and the potential regulatory competition among signatories determine that the effectiveness of the OECD monitoring system is a function of the extent to which the structural characteristics of the OECD monitoring system makes national anti-bribery efforts monitorable to other signatories. OECD anti-bribery collaboration needs an innovative monitoring approach which allows high-level inflow of information on transnational bribery offenses and effective mutual monitoring among signatories on transnational bribery regulation. This chapter formulates a three-level solution model to address the monitoring problem in OECD anti-bribery collaboration: first, given that anti-corruption scholarship has suggested that the lack of information on transnational bribery is a key impediment to transnational bribery regulation, and has also proved that the private sector is appropriate information source, this model encourages private sector actors to report clues of transnational bribery so as to resolve the lack of first-hand information on transnational bribery. Second, given the weakness of private sector actors in collecting solid evidence, this monitoring program should incorporate the comparative advantage of private sectors’ action in finding first-hand evidence of transnational bribery and the comparative advantage of public sector offices in conducting in-depth investigations in the same model. Third, given the general concern that a national prosecutor of the home country of bribe-paying companies may shirk duty because of protectionism, prosecutors in the home country of victimized competitors should be authorized the privilege to monitor the investigation process.
Keywords“Ineffective enforcement” A Monitoring system A Three-level solution model
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