The Culture Variable Vis-à-Vis Anti-bribery Law: A Grey Area in Transnational Corporate Criminal Liability

Abstract

Cross-border transactions are generating corresponding globalisation of law enforcement efforts. Culture has significantly influenced the legal analysis of anti-bribery law. With the increase of transnational bribery, benefits from globalisation will be undermined unless an effective legal regime can mitigate the harm of bribery. It is perceived that corruption in China is more prevalent than in the West given its embedded place in Chinese culture. It is further alleged that Chinese multinational companies (MNCs) are taking advantage of an unlevel playing field, as they are not subject to stringently-enforced anti-bribery laws. This hypothesis creates a myriad of anti-bribery problems in terms of legislation and enforcement, which particularly manifest in China's perceived cultural toleration of bribery. Cultural assumptions undermine the global anti-bribery regime and compromise potential collaborative anti-bribery efforts across jurisdictions in a rapidly globalizing world. The Chinese culture does not necessarily impede China's criminalisation of paying bribes to foreign officials. It is argued that the cultural role should not be overestimated, otherwise the hazard of the ethnocentric engagement with the Chinese culture would affect the ability of foreign MNCs to integrate their global compliance programmes. Multinationals can only mitigate their exposure to criminal liability globally, provided that they comply robustly with anti-bribery laws of both home and host jurisdictions.

Religious influences on the rationalization of corporate bribery in Indonesia: a phenomenological study

“…Although some societies aspire to good relations between business and religion, this situation rarely obtains (Pavarala & Malik, 2010). The present study provides evidence that the reality is far more complicated, as Bu (2018) suggests. While religion can be used to promote a positive business reputation in Indonesia, this study reveals that strong religious beliefs can hide unethical decision-making, as suggested in previous studies (Hunt & Vitell, 1993).…”

Making It Rain? Comparing the Determinants of Chinese and Western FDI Flows to Africa

“…The ‘Eight Amendment to the Criminal Law’ is similar to initiatives implemented in recent decades in the West, including the FCPA (Yin et al., 2011). But it is largely symbolic (Bu, 2018). Enforcing this anti‐corruption law would underscore the seriousness of Beijing’s drive to uproot corruption both domestically and internationally and counter the popular narrative that ‘corruption is China’s friend’.…”

Corruption or Corporate Hospitality: An Analytical Discourse of Section 17A of the Malaysian Anti-Corruption Commission Act 2009

“…The criticism is although an affordable gift or hospitality is unlikely to be penalised, it is difficult to quantify the same because of the obscure line between a legitimate expenditure and an unlawful bribe (Bu, 2018). Thus, the UK's Serious Fraud Office (SFO) would only prosecute upon evidence of systematic bribery rather than a one-off payment (Bu, 2018). The post-legislative scrutiny report on the UKBA acknowledged that the UKBA is silent on CH.…”

“…Questions arise as to what constitutes 'normal' expenditure within a given sector, what is the meaning of "reasonable and proportionate hospitality", and what are the "standards of norms applying in a particular sector"(Select Committee on the Bribery Act 2010, 2019). There is no ceiling stated in the UKBA for expenses in gifts and hospitality (Bu, 2018). Table 2 below succinctly states the UK's position on corruption and CH.…”

“…In practice, the line between a bona fide business expenditure and a bribe is uncertain. Although abundant hospitality may trigger FCPA liability, it is difficult to distinguish when hospitality is seen as an inappropriate inducement to seek business (Bu, 2018). The FCPA does not set the limits for expenses in gifts and hospitality (Bu, 2018).…”