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GLOBAL CORRUPTION Law, Theory & Practice

Table of contents
Chapter One. CORRUPTION IN CONTEXT: SOCIAL, ECONOMIC AND POLITICAL DIMENSIONS
Chapter Seven. CRIMINAL SENTENCES AND CIVIL SANCTIONS FOR CORRUPTION
Chapter Eight. THE LAWYER'S ROLE IN ADVISING BUSINESS CLIENTS ON CORRUPTION AND ANTI-CORRUPTION ISSUES
Chapter Thirteen. CAMPAIGN FINANCE LAWS: CONTROLLING THE RISKS OF CORRUPTION AND PUBLIC CYNICISM
GLOBAL CORRUPTION Law, Theory & Practice
3rd Edition
GERRY FERGUSON
© 2018 Gerry Ferguson. This book is released under a Creative Commons Attribution-Non-commercial-Share Alike 4.0 license
Table Of Contents
Introduction
INTRODUCTION

GLOBAL CORRUPTION

 

 

 

 

 

GLOBAL CORRUPTION

LAW, THEORY & PRACTICE

Legal Regulation of Global Corruption under

International Conventions, US, UK and Canadian Law

Third Edition

GERRY FERGUSON

 

 

© 2018 Gerry Ferguson

Third Edition

Published in Canada by the University of Victoria

Victoria, BC V8P 5C2

press@uvic.ca

Book design by Yenny Lim, Copyright & Digital Publication Services Assistant, University of Victoria Libraries

This book is released under a Creative Commons Attribution-Non-commercial-Share Alike 4.0 license (CC-BY-NC-SA). See creativecommons.org/ for more information. This book, or parts of it, may be reproduced for non-commercial purposes, provided that proper attribution is given to the original author.

Ferguson, Gerry. (2018). Global corruption: Law, theory & practice. Victoria, BC: University of Victoria.

To obtain permission for uses beyond those outlined in the Creative Commons license, please contact Gerry Ferguson at gferguso@uvic.ca.

While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by authors, editors or publishers.

Library and Archives Canada Cataloguing in Publication

Ferguson, Gerry, author

Global corruption : law, theory & practice / Gerry Ferguson.

Issued in print and electronic formats.

ISBN 978-1-55058-574-2 (softcover).--ISBN 978-1-55058-575-9 (PDF)

1. Corruption--Law and legislation. I. University of Victoria (B.C.), issuing body II. Title.

K5261.F47 2018

364.1'323

C2017-907410-5

 

 

C2017-907411-3

 

Introduction.1. IMAGE CREDITS

Images were used in this book under the following applicable Creative Commons licenses. Reuse and attribution should consider the following:

Front cover art (clockwise from top left):

Back cover art:

Figure 1.1:

Introduction.2. SPONSORS

The following organizations have kindly agreed to be web sponsors for this book. The book may be found on their websites.










The United Nations Office on Drugs and Crime (UNODC) is a global leader in the fight against illicit drugs and international crime. It has developed TRACK (Tools and Resources for Anti-Corruption Knowledge)—a web-based anti-corruption portal containing legislation and jurisprudence relevant to the United Nations Convention against Corruption. TRACK also includes the Anti-Corruption Academic Initiative (ACAD), which is a collaborative academic project that aims to promote anti-corruption education in universities and other academic institutions worldwide. Global Corruption is part of the ACAD initiative.
https://track.unodc.org/Academia/Pages/TeachingMaterials/GlobalCorruptionBook.aspx


The International Centre for Criminal Law Reform andCriminal Justice Policy (ICCLR) is an independent, international institute whose mission is to promote the rule of law, democracy, human rights, and good governance in criminal law and the administration of criminal justice, domestically, regionally, and globally.
https://icclr.law.ubc.ca/resources/global-corruption-law-theory-and-practice/





Transparency International Canada (TI Canada) is Canada’s leading anti-corruption organization. Its mandate involves education and building awareness on the effects of corruption across the country and worldwide.
http://www.transparencycanada.ca/what-we-do/publications/









The Canadian Bar Association (CBA) is the largest professional association for lawyers in Canada. CBA promotes fair justice systems, facilitates effective law reform, upholds equality and the legal profession, and are devoted to eliminating discrimination. They are the premiere provider of quality legal training and information in Canada.
http://www.cba.org/Sections/Anti-corruption/Resources/Resources/Global-Corruption-Law,-Theory-and-Practice-Course



UVicSpace—the University of Victoria’s institutional preserves and provides access to the digital scholarly works published by UVic faculty, students, and staff.
https://dspace.library.uvic.ca/handle/1828/9253

 

 

To the women in my life

for all their love and support

Sharon, Debbie and Lori

and

Alexa, Jessica and Kailyn

Introduction.3. TABLE OF ACRONYMS
AAA

American Arbitration Association

ABA

American Bar Association

ABMS

ISO 37001 Anti-bribery Management System standard for organizations

ACA

Anti-corruption agency

ACC

Association of Corporate Counsel

ACC

Bangladesh, Anti-Corruption Commission

ACoBA

UK, Advisory Committee on Business Appointments

AECA

Arms Export Control Act

AFAR

Arab Forum on Asset Recovery

AFMLS

Asset Forfeiture and Money Laundering Section

AIT

Agreement on Internal Trade

ALACs

Transparency International, Advocacy and Legal Advice Centres

AMF

Quebec, Canada, Autorité des marchés financiers

AML

Anti-Money Laundering

APEC

Asia-Pacific Economic Cooperation

APPC

UK, Association of Professional Political Consultants

ASEM

Asia-Europe Meeting

ASMLS

Asset Forfeiture andMoney Laundering Section

AU

African Union

AU Convention

African Union Convention on Preventing and Combating Corruption

BITs

bilateral investment treaties

BSA

US, Bank Secrecy Act

BOTA

BOTA Foundation

BOO

build-own-operate

BPI

Bribe Payers Index

CBA

Canadian Bar Association

CBA Code

Canadian Bar Association Code of Professional Conduct

CCIR

EC, Code of Conduct for Interest Representatives

CDA

US, Contract Disputes Act of 1978

CED

Committee for Economic Development

CETA

Canada-European Union, Comprehensive Economic and Trade Agreement

CFT

combating the financing of terrorism

CFPOA

Canada, Corruption of Foreign Public Officials Act

CICA

US, Competition in Contracting Act

CICIG

International Commission against Impunity in Guatemala

CIPR

UK, Chartered Institute of Public Relations

COC

UK, Code of Conduct (for Members of Parliament)

COE

Council of Europe

COIA

Canada, Conflict of Interest Act

COIC

Canada, Conflict of Interest Code (for Members of the House of Commons)

CPI

Corruption Perceptions Index

CPS

UK, Crown Prosecution Service

CSC

UK, Civil Service Commission

CSP

corporate social performance

CSPL

UK, Committee on Standards in Public Life

CSR

corporate social responsibility

CTRs

currency transaction reports

CUSAGP

Canada-US Agreement on Government Procurement

DAEO

US, designated agency ethics official

DFAIT

Canada, Department of Foreign Affairs and International Trade

DFID

UK, Department for International Development

DNA

Romanian Anti-Corruption Authority

Dodd-Frank Act

US, Dodd-Frank Wall Street Reform and Consumer Protection Act

DOJ

US, Department of Justice

DOJ-AFF

US, Department of Justice Asset Forfeiture Funds

DPAs

US, UK, Deferred Prosecution Agreements

DPOHs

Canada, designated public office holders

DPP

Canada, Director of Public Prosecutions

DTR5

UK, Transparency Directive Review

EA

Canada, Evidence Act

EBOs

US, Executive Branch Officials

EBRD

European Bank for Reconstruction and Development

EC

European Commission

ECHR

Bangladesh, Executive Committee of National Economic Council

ECNEC

Bangladesh, Executive Committee of National Economic Council

ECT

Energy Charter Treaty

EFCC

Nigeria, Economic and Financial Crimes Commission

EGA

US, Ethics in Government Act

EITI

Extractive Industries Transparency Initiative

EP

European Parliament

ESTMA

Canada, Extractive Sector Transparency Measures Act

EU Convention

The Convention of the European Union on the Fight AgainstCorruption Involving Officials of the European Communities or Officials of Member States

EU Directive

EU Directive on Public Procurement

FACFOA

Canada, Freezing Assets of Corrupt Foreign Officials Act

FAIR

Canada, Federal Accountability Initiative for Reform

FAR

US, Federal Acquisition Regulation

FATF

US, Financial Action Task Force

FCA

US, False Claims Act

FCPA

US, Foreign Corrupt Practices Act

FDI

Foreign Direct Investment

FAA

Canada, Federal Accountability Act

FIFA

Fédération Internationale de Football Association

FinCEN

US, Financial Crimes Enforcement Network

FINTRAC

Financial Transactions and Reports Analysis Centre of Canada

FIU

Financial Intelligence Unit

FLSC

Federation of Law Societies of Canada

FLS Model Code

Canada, Federation of Law Society’s Model Code of Professional Conduct

FIPPA

Ontario, Canada, Freedom of Information and Protection of Privacy Act

FRO

UK, Financial Reporting Order

FTC

US, Federal Trade Commission

GAO

US, Government Accountability Office

GCB

Global Corruption Barometer

GDP

Gross Domestic Product

GOPAC

Global Organization of Parliamentarians Against Corruption

GPSA

Gas Purchase and Sales Agreement

GRECO

Group of States against Corruption

HCE

US, House Committee on Ethics

HKIAC

Hong Kong International Arbitration Centre

HLOGA

US, Honest Leadership and Open Government Act

IACU

International Anti-Corruption Unit

IBRD

International Bank for Reconstruction and Development

ICAC

Hong Kong, Independent Commission Against Corruption

ICAR

International Centre for Asset Recovery

ICC

International Chamber of Commerce

ICDR

International Centre for Dispute Resolution

ICSID

International Centre for Settlement of Investment Disputes

IDA

International Development Association

IFBTF

International Foreign Bribery Task Force

IFC

International Finance Corporation

IG

US, Inspector General

IIA

Interinstitutional Agreement on the Transparency Register

IIAs

international investment agreements

ISO

International Organization for Standardization

ITAR

International Traffic in Arms Regulations

ITO

Information to Obtain

ITT

Invitation to Tender

JITs

UK, Joint Investigation Teams

JVA

Joint venture agreement

KLRCA

Kuala Lumpur Regional Centre for Arbitration

LA

Canada, Lobbying Act

LBOs US, Legislative Branch Officials
LCC

Canada, Lobbyists’ Code of Conduct

LCIA

London Court of International Arbitration

LDA

US, Lobbying Disclosure Act

LRA

Canada, Lobbyists Registration Act (renamed the Lobbying Act)

M&A

Mergers and Acquisitions

MACCIH

Support Mission Against Corruption and Impunity in Honduras

MASH

Municipalities, Academic Institutions, Schools and Hospitals

MDBs

Multilateral Development Banks

MIGA

Multilateral Investment Guarantee Agency

MLA

Mutual Legal Assistance

MLACMA

Canada, Mutual Legal Assistance in Criminal Matters Act

MLAT

Mutual Legal Agreement

MLPP

Model Law on Public Procurement UNCITRAL)

MOJ

UK, Ministry of Justice

MOUs

memoranda of understanding

MPs

Members of Parliament

MSG

UK, Multi Stakeholder Group

NAFTA

North American Free Trade Agreement

NCA

UK, National Crime Agency

NCB

Non-Conviction Based (forfeiture)

NGO

Non-Governmental Organization

NILE

US, National Institute for Lobbying and Ethics

NORAD

Norwegian Agency for Development Cooperation

NPA

US, Non-Prosecution Agreements

OAG

Attorney General of Switzerland

OAS

Organization of American States

OCDETF

Organized Crime Drug Enforcement Task Force

OCE

US, Office of Congressional Ethics

OCHRO

Canada, Office of the Chief Human Resources Officer

OPCS

UK, Office of the Parliamentary Commissioner for Standards

OECD

Organisation for Economic Co-operation and Development

OGE

US, Office of Government Ethics

OM

operate and maintain arrangement

OSC

US, Office of the Special Counsel

OSC

Ontario Securities Commission

P3s

Public-Private Partnership

PACI

World Economic Forum Partnering Against Corruption Initiative

PATT

Proactive Asset Targeting Team

PCA

Permanent Court of Arbitration

PCR

UK, Public Contracts Regulations

PEPs

Politically exposed persons

PIDA

UK, Public Interest Disclosure Act

PIM System

Public investment management system

POCA

UK, Proceeds of Crime Act 2002

POs

US, Public Officials

POHs

Canada, public office holders

PPP Canada

Public Private Partnership Canada

PPSC

Public Prosecution Service of Canada

PQ

Canada, Parti Québécois

PRCA

UK, Public Relations Consultants Association

PRII

Public Relations Institute of Ireland

PSA

UK, Public Services (Social Value) Act 2012

PSCs

People who have significant control over the company

PSDPA

Canada, Public Servants Disclosure Protection Act

PWGSC

Public Works and Government Services Canada

RCMP

Royal Canadian Mounted Police

RFP

Request for Proposal

RFQ

Request for Quotation

RFQu

Request for Qualifications

RFSO

Request for Standing Officer

RICO

US, Racketeering Influenced and Corrupt Organizations Act

SARs

Suspicious Activity Reports

SBEE

UK, Small Business Enterprise & Employment Act 2015

SCC

Arbitration Institute of the Stockholm Chamber of Commerce

SCE

US, Senate Committee on Ethics

SCPO

UK, Serious Crime Prevention Order

SEC

US, Securities and Exchange Commission

SEMA

Special Economic Measure Act

SFO

UK, Serious Fraud Office

SIAC

Singapore International Arbitration Center

SMEs

Small and Medium Sized Enterprises

SOCA

UK, Serious Organised Crime Agency

SOCPA

UK, Serious Organised Crime and Police Act

SOX

US, Sarbanes-Oxley Act of 2002

SPV

Special Purpose Vehicle

SRA Code

UK, Solicitor Regulations Authority Code of Conduct

STRs

suspicious transaction reports

StAR

Stolen Asset Recovery Initiative (WB/UNODC)

TFF

US, Treasury Forfeiture Fund

TI

Transparency International

TI Canada

Transparency International Canada

TI UK

Transparency International United Kingdom

TIPs

treaties with investment provisions

TLA

UK, Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014

TR

EC/EP, Transparency Register

TRO

Temporary restraining order

UEFA

Union of European Football Associations

UKFIU

UK, Financial Intelligence Unit

UKLR

UK Lobbying Register

UNCAC

United Nations Convention against Corruption

UNCITRAL

United Nations Commission on International Trade Law

UNDP

United Nations Development Programme

UNODC

United Nations Office on Drugs and Crime

UNTOC

United Nations Convention against Transnational Organized Crime

UPAC

Quebec, the Unité permanente anticorruption / Permanent Anticorruption Unit

USC

United States Code

US DOJ

United States Department of Justice

UKFIU

UK, Financial Intelligence Unit

VIAC

Vienna International Arbitration Centre

WB

World Bank

WDF

World Duty Free

WGB

OECD’S Working Group on Bribery

WGI

Worldwide Governance Indicators

WJP

US, World Justice Project

WPA

US, Whistleblower Protection Act

WPEA

US, Whistleblower Protection Enhancement Act

WTO-AGP

World Trade Organization Agreement on Government Procurement

 

Introduction.4. ABOUT THE AUTHOR

Gerry Ferguson is a University of Victoria Distinguished Professor of Law who specializes in criminal law. He is also a senior associate with the International Centre for Criminal Law Reform and Criminal Justice Policy in Vancouver. Professor Ferguson is a member of the United Nations Office on Drugs and Crime Anti-Corruption Academic Development Initiative (ACAD) devoted to the creation of anti-corruption academic materials and the teaching of university courses on global corruption. He is co-editor and co-author (with Douglas Johnston) of Asia-Pacific Legal Development (UBC Press, 1998), was a co-leader of the CIDA-funded Canada-Vietnamese Legislative Drafting and Management Program, 1994-95, and a team member of the CIDA-funded Canada-China Procuratoracy Project, 2003-2008, under the direction of the ICCLR. He is the co-author, with Justice Dambrot, of the annually updated two-volume book, Canadian Criminal Jury Instructions and co-author of the Annual Review of Criminal Law. Professor Ferguson has taught criminal law as a Visiting Professor at the University of Hong Kong, the University of Auckland, Monash University, the University of Malaya and the University of Airlangga in Indonesia. He has given guest lectures at various law schools in South Africa, China, Vietnam, Thailand, Singapore, Australia, New Zealand, Ireland and Europe. Professor Ferguson is a former member of the National Advisory Council of the Law Commission of Canada and an active participant in the Canadian Bar Association, Law Society, and Continuing Legal Education Society activities. His teaching and scholarly interests include transnational and comparative criminal law and procedure, sentencing and mental health law. Professor Ferguson may be contacted at gferguso@uvic.ca.

Introduction.5. PREFACE AND ACKNOWLEDGMENTS

PREFACE TO THE THIRD EDITION

I am most grateful to Inba Kehoe, Copyright Officer & Scholarly Communication Librarian at the University of Victoria Libraries, for suggesting that I produce an open-access print version of my 2017 electronic version of Global Corruption: Law, Theory and Practice. This edition includes a number of significant anti-corruption developments that have occurred in the past year, but not all changes and developments. Thus this edition is comprehensively updated to January 2017 and selectively updated to February 2018. This edition also adds a new Chapter 13 entitled “Campaign Finance Laws: Controlling the Risks of Corruption and Public Cynicism” and a Table of Acronyms.

Gerry Ferguson

February 2018

ACKNOWLEDGMENTS

I am deeply indebted to Mary Wallace for her dedication and diligence in helping to transform the electronic version to this print version and to Leyla Salmi for her research assistance on various topics in the early stages of producing this edition. Likewise, I am equally indebted to Inba Kehoe, Stephanie Boulogne and Yenny Lim for the care and attention that they have put into the editorial production and the design, including cover, of this version.

PREFACE TO THE SECOND EDITION

It has only been 18 months since the first edition of this book was published. But the frequency of corruption and the social, legal, economic and political responses to corruption continue to increase at a dizzying pace.

While organized on the same model as the first edition, the second edition includes references to up-to-date anti-corruption laws, policies, best practices and excellent research resources such as books, articles and reports by NGOs, government bodies, academics and practitioners. In addition, several topics have been either introduced or significantly expanded in each chapter. The detailed Table of Contents following the Preface to the first edition indicates the scope of the topics covered in this book.

Gerry Ferguson

January 2017

ACKNOWLEDGMENTS

As with the first edition, this book would not have seen the light of day without the contributions of a dedicated team of legal research assistants. This is especially true in the case of the chief editor, Mary Wallace, who painstakingly reviewed and edited the entire book. I am deeply indebted to the following students who researched and updated various chapters: Connor Bildfell, Sarah Chaster, Dmytro Galagan, David Gill, Laura Ashley MacDonald, Madeline Reid and Matthew Spencer. I am also very grateful to Dmytro Galagan and Jeremy Henderson who added new sections to Chapters 7 and 12 and to Victoria Luxford, Joseph Mooney and Jeremy Sapers who updated their Chapters (9, 10 and 12). Finally I am very grateful to the CBA Law for the Future Fund, the Law Foundation of British Columbia and the Foundation for Legal Research who generously funded my research assistants for this book.

PREFACE TO THE FIRST EDITION

In the beginning there was no corruption but Adam got greedy, abused his position of privilege by going for the apple and things have gone downhill ever since. Corruption is now an inescapable reality of modern life.

Purpose of this Book

No Canadian law school (prior to UVic Law in September, 2015) had a course on global corruption, and relatively few law schools around the world have such a course. This book has been specifically created to make it easier for professors to offer a law school course on global corruption. This book is issued under a creative commons license and can be used for free in whole or in part for non-commercial purposes. The first chapter sets out the general context of global corruption: its nature and extent, and some views on its historical, social, economic and political dimensions. Each subsequent chapter sets out international standards and requirements in respect to combating corruption – mainly in the UN Convention Against Corruption (UNCAC) and the OECD Bribery of Foreign Officials Convention (OECD Convention). The laws of the United States and United Kingdom are then set out as examples of how those Convention standards and requirements are met in two influential jurisdictions. Finally, the law of Canada is set out. Thus, a professor from Africa, Australia, New Zealand or English speaking countries in Asia and Europe has a nearly complete coursebook – for example, that professor can delete the Canadian sections of this book and insert the law and practices of his or her home country in their place.

While primarily directed to a law school course on global corruption, I expect that this coursebook, or parts of it, will be of interest and use to professors teaching courses on corruption from other academic disciplines and to lawyers and other anti-corruption practitioners.

Genesis of this Book

The United Nations Office on Drugs and Crime (UNODC) is responsible for promoting the adoption of and compliance with UNCAC. Chapter II of UNCAC is focused on Prevention of Corruption. Educating the lawyers, public officials and business persons of tomorrow on anti-corruption laws and strategies is one preventative strategy. Recognizing this, the UNODC set up an Anti-Corruption Academic Initiative (ACAD) to promote the teaching of corruption in academic institutions by collecting and distributing materials on corruption. As a member of the ACAD team, this coursebook is my contribution to that worthy goal.

Where to Next

As a first edition, there is room for improvement in this book. I hope to update and repost this book annually. In future editions, I would like, for example,

  • to provide an index
  • to expand chapter 8 on the “Role of Lawyers in Advising Business Clients on Corruption and Anti-Corruption Issues”
  • to include a chapter on corruption and political parties and campaign financing
  • and perhaps to add a few chapters on corruption in specific business sectors such as extractive industries, infra-structure projects etc.

I would be very pleased to hear from users of this book especially in regard to the inevitable errors and omissions that I have made in trying to describe and comment on the vast field of global corruption under UNCAC and the OECD Anti-Bribery Convention, and the laws of United States, United Kingdom and Canada.

Finally, I would like to thank the many NGOs and government agencies that have produced an incredible volume of excellent studies and reports on corruption/anti-corruption issues and for making those studies and reports, many of which are used in this book, publicly available.

Gerry Ferguson

September 2015

ACKNOWLEDGMENTS

This book would not have been completed without a host of angels and archangels and a few generous funders to keep them fed. All these angels provided excellent, high quality research and writing assistance and I am most grateful to all of them. Some of the angels became archangels due to the extent of their research and writing contributions to this book. The archangels include Katie Duke for her work on chapters 1 to 3, Ashley Caron and Martin Hoffman for their work on chapters 4 and 5, James Parker for his work on chapters 1 and 6 and Madeline Reid for her editing contributions to the whole book. Chapters 9 to 12 would not have been possible without the excellent research and writing of Joseph Mooney, Jeremy Sapers, Mollie Deyong, Erin Halma and Victoria Luxford. Other indispensable angels included Laura MacDonald, Courtney Barnes, Lauryn Kerr and Ryan Solcz. I would like to sincerely thank the following organizations for helping to fund the research students: Law Foundation of British Columbia, University of Victoria Learning and Teaching Centre, Canadian Bar Association Law for the Future Fund, the Foundation for Legal Research and Dentons LLP.

I am also grateful to the following lawyers, professors and anti-corruption practitioners who have made valuable comments on parts of this book: Noah Arshinoff, Sean Burke, Roy Cullen, Alan Franklin, Dr. Noemi Gal-Or, Professor Mark Gillen, Steven Johnston, Selvan Lehmann, Richard Lane, Professor Andrew Newcombe, John Ritchie, and Graham Steele.

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