Table of Contents

Corruption

Corruption

Economic Analysis and International Law

Marco Arnone and Leonardo S. Borlini

Corruption presents many legal and regulatory challenges, but these challenges cannot be met by the law in isolation. This book presents economic analysis of crime as an essential tool for shaping an effective legal apparatus. The authors contend that in order to assess whether and how to regulate corruption, it is necessary to start with a thorough inquiry into the causes, institutional and social effects, and most of all, actual and potential economic and financial consequences of crimes. This, they argue, should inform and help shape a balanced legal and regulatory approach to corruption.

Chapter 11: Criminalization of the offense

Marco Arnone and Leonardo S. Borlini

Subjects: economics and finance, economic crime and corruption, law - academic, comparative law, corruption and economic crime, international economic law, trade law

Extract

For the most part, the anti-bribery conventions are not self-executing, which means that they require enabling acts before they can function inside a country and bind domestic courts. As mentioned above, the anti-corruption conventions set forth minimum standards that national implementing pieces of legislation must meet. State Parties must firstly identify where and how their own pieces of legislation fall below the standards of the conventions or where a domestic act is needed in order to implement specific treaties' provisions. Then, they must comply with the international obligation set forth by the convention at hand, by adopting appropriate pieces of legislation. For instance, deficiencies might occur in case domestic law does not criminalize certain types of conduct (such as the bribery of foreign public officials). They may also arise when an element of an offense is narrower than the corresponding element in the international conventions (e.g. in cases where the definition of a bribe does not include non-pecuniary advantages). More generally, in most constitutional systems a specific domestic law is required in order to introduce a new offense. As with most international criminal conventions, each of the antibribery treaties seeks to work out its own way to balance prima facie contrasting aims: on the one hand, to ease the adoption of a legally binding text and, thereafter, its implementation; on the other hand, to ease the harmonization of Contracting States' penal legislation.

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