经济学人:海外贿赂 两部法律的故事
日期:2013-01-21 21:25


Business Bribery abroad A tale of two laws
商业 海外贿赂 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.
据《华尔街日报》8月31日报道,美国司法部已经调查甲骨文--一家数据库软件公司--一年了。不寻常的是,甲骨文公司对此只字未提。而此前Ethisphere--一家推动商业道德的智库企业--把甲骨文评定为2009年全球最具有商业道德的企业之一。巴特勒大学的法学教授Mike Koehler写道,通用电气、惠普、英国阿斯利康和其他一些公司都在被Ethisphere评为全球最具商业道德企业的同时面临《反海外腐败法》的起诉或者调查。
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.
一些研究发现,这极大的遏制了去贫穷国家的商业活动。Chicago-Kent法学院的法学教授Andy Spalding把《反海外腐败法》的实施看成是对腐败猖獗的国家"实际上的制裁"。咨询机构毕马威的一项研究显示,三分之一的英国和三分之二的美国公司干脆直接放弃腐败猖獗的国家来避免被起诉的风险。
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.

  • avoidvt. 避免,逃避
  • corruptionn. 腐败,堕落,贪污
  • exchangen. 交换,兑换,交易所 v. 交换,兑换,交易
  • vastadj. 巨大的,广阔的 n. 浩瀚的太空
  • illicitadj. 非法的,禁止的,不正当的
  • securitiesn. 有价证券;担保;保证人;抵押物(security的
  • settledadj. 固定的;稳定的 v. 解决;定居(settle
  • accurateadj. 准确的,精确的
  • wrongdoern. 做坏事的人;违法犯罪者
  • compliancen. 顺从,遵从,灵活