Economic analyses of law enforcement generally focus on situations in which law is enforced by a single public agency, in a single jurisdiction, which faithfully follows its announced enforcement strategy. This does not reflect the reality of enforcement aimed at corporate crime, which commonly involves multiple agencies, often based in different jurisdictions, and which adjust their enforcement strategy in response to prior misconduct. This chapter will discuss the analysis of multijurisdictional law enforcement, with particular reference to cases concerning foreign bribery. The premise is that this kind of interaction can be modelled as a dynamic multi-player game in which the players include both enforcement agencies and firms. In principle, this kind of analysis can be used to formulate testable hypotheses about outcomes of interactions between regulators and firms. Unfortunately, opportunities to evaluate these kinds of hypotheses empirically are limited because many aspects of the structure of the game are difficult to observe, and firms’ misconduct and regulators’ enforcement activities typically are only observable when they result in formal sanctions. The chapter concludes with a discussion of some of the challenges inherent in normative analysis of the outcomes of multi-jurisdictional law enforcement games.
Kevin E. Davis
Kevin E. Davis
This chapter discusses the criteria that ought to be used to evaluate negotiated solutions in transnational bribery cases and the rules that govern them. The premise is that the rules that govern negotiated resolutions should, at the very least, conform to the principles set out in the United Nations Convention against Corruption. The UN Convention suggests that the objectives of anti-corruption initiatives include effectiveness, efficiency, and due process, with condemnation, compensation, and prevention as subsidiary objectives. In addition, the anti-bribery regime generally should allocate power and resources legitimately and fairly. Both the rules which govern negotiated resolutions and the resolutions themselves ought to be evaluated in terms of the extent to which they achieve all of these objectives. However, the range of ways of defining and weighting these objectives, combined with the difficulty of assessing the harm associated with any given instance of misconduct, makes it unlikely that there will be any consensus about how to evaluate any given resolution or resolution process.