经济学人:海外行贿 两部法律的故事
日期:2013-01-13 10:20


Business Bribery abroad A tale of two laws
商业 海外行贿 两部法律的故事
America's anti-corruption law deters foreign investment. Britain's is smarter
BRIBING foreign officials is wrong, but not everything governments do to prevent it is wise or proportional.
Firms are increasingly fed up with the way America's Foreign Corrupt Practices Act (FCPA) is written (confusingly) and applied (vigorously).
The law was passed in 1977, but recent years have seen a spike in enforcement, from five actions in 2004 to 74 in 2010.
Five of the ten biggest settlements ever were last year, including a $400m fine against BAE Systems, a British defence contractor, and a $365m fine against ENI, an Italian oil firm.
On August 31st the Wall Street Journal reported that the Department of Justice has been investigating Oracle, a database-software company, for a year. Unusually, Oracle has said nothing about the investigation. Ethisphere, a promoter of corporate responsibility, rated Oracle one of the world's most ethical companies in 2009. Mike Koehler, a law professor at Butler University in Indiana, writes that General Electric, HP, AstraZeneca and others have all been among Ethisphere's "World's Most Ethical" while settling FCPA prosecutions or under investigation.
八月31日《华尔街日报》报道称司法部调查一个数据库软件公司Oracle,已经一年了。反常的是,Oracle对这次调查只字不提。企业责任提倡人Ethisphere认为Oracle是2009年全球最有道德责任感的企业之一。印第安纳州Butler大学的某法律专家Mike Koehler写道,曾位列Ethisphere的"全球最具道德责任感企业"名单上的General Electric, HP, AstraZeneca等企业都被FCPA的指控过或者受到调查。
An FCPA action is an ordeal. Few firms dare risk going to court—only two cases against corporations have ever resulted in completed trials. The vast majority of cases are settled, which can take years. Listed companies must satisfy not only the Department of Justice, but also the Securities and Exchange Commission, which enforces the FCPA provisions requiring accurate records of all business dealings (to deter or detect illicit payments). Before the department and the commission will sign off on a settlement, the company must satisfy them that the rest of its operations are squeaky clean. Narrow investigations can mutate into broad ones that cost tens of millions of dollars.
And bosses can be sent to prison for up to 20 years if their companies fall foul of the FCPA. In theory, they could be jailed because a staff member at a foreign subsidiary bribed an official without their knowledge. In some cases, the law insists that directors ought to know about dodgy goings-on, even if they do not.
This is a hefty deterrent to doing business in poor countries, some studies have found. Andy Spalding, a law professor at the Chicago-Kent College of Law, likens the way the FCPA is enforced to "de facto sanctions" on countries where corruption is rife. A study by KPMG, a consultancy, found that a third of British and a quarter of American companies would simply steer clear of corruption-prone countries to avoid the risk of being prosecuted. Firms from less fussy places, such as China, will happily fill the gap.
有研究发现,这成了企业进驻穷国的极大障碍。芝加哥肯特法学院的一名法律专家Andy Spalding将FCPA的做法类比为贪腐盛行的国家的"事实判决"。某顾问公司KPMG做了一份研究表明,三分之一的英国公司和四分之一的美国公司会简单地选择不去那些贪腐盛行的国家做生意,从而避免被起诉。而处于要求不那么严格的国家(比如中国)的企业则很乐意填补这个空白。
The US Chamber of Commerce, a business lobby, says the FCPA also deters foreign mergers and acquisitions. A firm inherits the sins of a company it buys, even if it has done reasonable due diligence, the chamber says. To avoid this risk, it must conduct the equivalent of a "vast internal investigation", says the chamber. Many firms find it simpler to stay at home.
A new British anti-bribery law, passed in 2010, appears to have been better crafted. The Bribery Act is broad and tough. It covers bribery within Britain as well as abroad. In contrast to the FCPA, it makes no exception for small "facilitation payments" to speed up routine business such as customs checks or visas.
But it is fair, too. Unlike the FCPA, it has a "compliance defence" that allows a company to avoid the harshest penalties if the wrongdoer is a junior employee and the firm otherwise has a strict anti-bribery policy which is clear to all employees and effectively administered. One rogue employee can't easily cause a crippling probe into an otherwise blameless company.
America's Department of Justice sees no need for such safeguards. And since few cases go to trial, judges have given little guidance as to what the FCPA's bewildering text actually means. So, for now, it means whatever an aggressive prosecutor says it does.

  • detervt. 阻止,抑制,威吓
  • vastadj. 巨大的,广阔的 n. 浩瀚的太空
  • rifeadj. 流行的,盛传的,非常多的
  • deterrentadj. 制止,防止,挽留 n. 挽留的事物,妨碍物
  • guidancen. 引导,指导
  • settledadj. 固定的;稳定的 v. 解决;定居(settle
  • corruptadj. 腐败的,堕落的 vt. 使 ... 恶化,贿赂
  • conductn. 行为,举动,品行 v. 引导,指挥,管理 vt.
  • corporateadj. 社团的,法人的,共同的,全体的
  • trialadj. 尝试性的; 审讯的 n. 尝试,努力,试验,试