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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.
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Chapter 12: Sanctions and corporate liability

Marco Arnone and Leonardo S. Borlini


In Chapter 9 we highlighted the primary importance of increasing the effectiveness and deterrence of criminal sanctions against corruption. Here we detail the international conventions' provisions on this point with the aim of assessing their capacity to concretely enhance national standards. Most of the anti-bribery agreements call for Parties to punish corruption by "effective, proportionate and dissuasive" criminal sanctions. This is a quasi-stereotyped formula within the landscape of cooperation in criminal matters. However, this standard may be further spelled out. By dismantling the three-pronged test with reference to the agreements under discussion, we likely obtain some indications as to the nature and severity of the sanctions required. In addition, effectiveness, proportionality, and deterrence are not the only requirements which (some of) the treaties envisage as regards the sanctioning standards. The conventions under analysis call upon State Parties to take the necessary measures to confiscate bribes, the proceeds and instrumentalities of bribery, the converted proceeds and, in a provision which presents innovative features for many national criminal systems, the equivalent value. Having regard to the subject allegedly responsible for the crime, the empirical evidence shows that most grand corruption cases are perpetrated through the scheme or in the interest of companies. In light of the above, when exploring the sanctioning standards drawn up by the international anti-corruption countries we also address the issue of corporate liability.

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