How Should Transnational Bribery Law Be Enforced?

There currently is significant divergence in enforcement of transnational bribery law, and there is little ground for believing there ought to be complete convergence. U.S. enforcement agencies have taken the lead in defining the OECD paradigm’s approach to enforcement and other enforcement agencies have begun to follow. The recent enforcement actions against Odebrecht S.A. are cases in point. The recommended approach favors vigorous investigation and severe sanctions, all aimed primarily at achieving deterrence, and ultimately prevention, with compensation and condemnation as secondary objectives. These methods and objectives are vulnerable to several potent critiques: there might be alternative ways of achieving deterrence, there might be alternatives to deterrence as a form of prevention, and prevention should not be pursued without regard to the associated costs. These objections challenge the effectiveness, efficiency, legitimacy, and fairness of the OECD paradigm’s approach to enforcement.