Bulovsky on Overlapping Multi-Jurisdictional Liability

Friday, February 8, 2019

As business increasingly cuts across national borders — and countries implement and enforce anti-corruption regimes aggressively — companies find themselves subject to liability in multiple jurisdictions. While fighting corruption is a normatively valuable goal, overlapping liability makes it difficult for a company to determine the extent of its potential liability. This lack of predictability has unintended consequences: it undermines the international business environment and over-deters beneficial behavior, such as investing in the developing world. Scholars have articulated an interest in creating a formal mechanism to solve this problem, but they have yet to adequately describe the basic provisions such a mechanism would contain. As such, this note is a first attempt to articulate the elements of an effective solution.

Specifically, this note proposes (1) a presumption that the country with the strongest jurisdictional ties to the allegedly unlawful activity will commence the anti-corruption action, (2) a multi-jurisdictional prohibition against double jeopardy, and (3) a commitment to seeking proportional punishment, including limiting disgorgement to the calculable amount of ill-gotten gains. This note argues that this mechanism should be housed in a series of bilateral agreements — similar to those seen in international antitrust enforcement. As such, this note takes a pragmatic and innovative approach to balancing over- and under-regulation in the anti-corruption context.

https://lawprofessors.typepad.com/crimprof_blog/2019/02/bulovsky-on-overlapping-multi-jurisdictional-liability.html

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Bulovsky on Overlapping Multi-Jurisdictional Liability curated from CrimProf Blog