The (in)Efficacy of Multilateral Corruption Laws: Why the United States Should Endorse the International Anti-Corruption Court

Cates, Peter | January 1, 2024

Public corruption, the abuse of state power for personal gain, plagues the international community by undermining democracy, exacerbating human rights issues, and stymying economic development. To combat this threat, the international community has taken on multiple treaties to collaboratively curb corruption and its effects including, significantly, the United Nations Convention Against Corruption and the OECD Anti-Bribery Convention. For its part, the United States prosecutes international corruption through the Foreign Corrupt Practices Act (FCPA). The FCPA subjects U.S. companies who engage in bribery schemes (the “supply-side” of corruption) to criminal and civil penalties regardless of whether the actions took place outside of the borders of the United States. This broad jurisdiction, however, does not extend to the foreign corrupt officials (the “demand-side” of corruption) outside of the jurisdiction of U.S. laws. Although the FCPA is meant to be just one lever of the broader international anti-corruption mechanisms, the OECD Anti-Bribery convention identifies the United States as one of only two active enforcers of the treaty’s standards. In international commercial markets, kleptocrats have created a sort of corruption marketplace in which these corrupt officials offer advantages like valuable government contracts or workarounds to regulations in exchange for bribes. Since the United States is one of the only countries in the world to enforce anti-corruption standards, American companies face higher consequences for engaging in this corrupt marketplace under the FCPA than their foreign peers, placing them at a competitive disadvantage. Because corruption is such a negative force on the world, the solution cannot be to make the U.S. laws less stringent. Instead, this Note seeks a solution that brings more countries into the fight against corruption, centered on the values of cooperation, accountability, and practicability. And, vitally, it seeks a solution that goes after the demand-side of corruption. This Note endorses the International Anti-Corruption Court (IACC). First proposed by former federal U.S. Judge Mark Wolf in 2013, the IACC has steadily gained momentum in the last few years, including an endorsement by the European Parliament in 2023, which indicates the increasingly realistic probability of the court materializing. Notably, the United States is absent among the supporters. Aside from the humanitarian and economic benefits, an IACC would also create a more equitable international commercial market in which American companies are currently disadvantaged. The IACC also provides an avenue to prosecute the demand-side of corruption and root out powerful kleptocrats abusing their offices, which would break down the corruption marketplace. President Biden has made combatting public corruption a core policy interest of his administration’s objectives; the IACC satisfies the goals of this initiative and would produce meaningful value to American companies and people. For all of those reasons, the United States should endorse and ultimately participate in the IACC.