PUBLISHED ARTICLES
"Behind the SNC-Lavalin Scandal: The Transnational Diffusion of Corporate Diversion" (2021) Canadian Journal of Political Science. DOI: 10.1017/S0008423921000664.
Abstract: At issue in the SNC-Lavalin scandal was a new tool of corporate criminal law: remediation agreements. Introduced in 2018, remediation agreements allow corporate diversion and create an alternative to the prosecution of corporations suspected of criminal wrongdoing. This article examines why the federal government adopted and chose this particular new tool. Drawing on a wide-ranging documentary record, I argue that this reform was the product of transnational lawmaking and the ongoing influence of Canada’s international commitments to prohibit and punish foreign bribery. The article shows how international criticism of Canada’s lacklustre anti–foreign bribery enforcement record catalyzed crossnational policy diffusion and learning from other states. This led Canada to adopt corporate diversion, which promised greater enforcement, and also led Canada to adopt a form of the practice with legislative and judicial limits that narrowed the chances of any company—including SNC-Lavalin—of obtaining a remediation agreement.
"Just a Business Decision? Debarment in Public Procurement in Canada and the United States" (2021) Canadian Public Administration 64(2): 238-256. DOI: 10.1111/capa.12413
Abstract: The Canadian government is considering changes to its Integrity and Suspension Policy, particularly the rules governing debarment and when an individual or corporation can be precluded from public contracting due to misconduct. The reforms would bring Canada’s policy closer to that of the US. This article compares federal debarment policies in Canada and the US and examines the consequences of these distinct policies by considering their role in anti-foreign bribery enforcement. This discussion reveals a disjuncture between Canada’s policy goals and practice, which suggests that the proposed reforms to Canada’s debarment policy are not as significant as they first appear.
"Law and Politics in FCPA Prosecutions of Foreign Corporations" (2021) Revista Direito GV 17(2). DOI: 10.1590/2317-6172202124
Abstract: The expansive reach of US prosecutions addressing corporate and economic crimes has piqued the interest of many commentators and scholars. This is perhaps nowhere more evident than in the enforcement of the US Foreign Corrupt Practices
Act (“FCPA”) against non-American corporations. The US adopted the FCPA in 1977 to ban the payment of bribes to foreign public officials to obtain a business advantage—decades before most other countries did so and with jurisdiction over American and many foreign corporations. More than 40 years after the creation of the FCPA, this article reviews and outlines a growing interdisciplinary research agenda that considers historical, legal, and political influences on the application of the FCPA to foreign corporations. In addition to mapping the contours of this growing research agenda, the article identifies several challenges for such research and proposes potential avenues for future research that promise to deepen our understanding of why and when the US makes use of its expansive jurisdiction to prosecute foreign corporations for bribery of foreign public officials.
"Twenty Years of the OECD Anti-Bribery Convention: National Implementation and Hybridization" (2018) UBC Law Review 51(3): 613-670.
Abstract: This article looks back on the 20 years since the OECD Anti-Bribery Convention’s signing and examines how states have implemented the Convention. It seeks to contribute to growing scholarship in comparative international law and identify the similarities and differences in how states have implemented their shared international obligation to criminalize foreign bribery. Through case studies of four of the largest economies within the OECD—Canada, Germany, the United Kingdom, and the United
States—I show how preexisting national policies to combat corporate and economic crime have shaped the national criminalization of foreign bribery and the enforcement of these news laws.
"Behind the SNC-Lavalin Scandal: The Transnational Diffusion of Corporate Diversion" (2021) Canadian Journal of Political Science. DOI: 10.1017/S0008423921000664.
Abstract: At issue in the SNC-Lavalin scandal was a new tool of corporate criminal law: remediation agreements. Introduced in 2018, remediation agreements allow corporate diversion and create an alternative to the prosecution of corporations suspected of criminal wrongdoing. This article examines why the federal government adopted and chose this particular new tool. Drawing on a wide-ranging documentary record, I argue that this reform was the product of transnational lawmaking and the ongoing influence of Canada’s international commitments to prohibit and punish foreign bribery. The article shows how international criticism of Canada’s lacklustre anti–foreign bribery enforcement record catalyzed crossnational policy diffusion and learning from other states. This led Canada to adopt corporate diversion, which promised greater enforcement, and also led Canada to adopt a form of the practice with legislative and judicial limits that narrowed the chances of any company—including SNC-Lavalin—of obtaining a remediation agreement.
"Just a Business Decision? Debarment in Public Procurement in Canada and the United States" (2021) Canadian Public Administration 64(2): 238-256. DOI: 10.1111/capa.12413
Abstract: The Canadian government is considering changes to its Integrity and Suspension Policy, particularly the rules governing debarment and when an individual or corporation can be precluded from public contracting due to misconduct. The reforms would bring Canada’s policy closer to that of the US. This article compares federal debarment policies in Canada and the US and examines the consequences of these distinct policies by considering their role in anti-foreign bribery enforcement. This discussion reveals a disjuncture between Canada’s policy goals and practice, which suggests that the proposed reforms to Canada’s debarment policy are not as significant as they first appear.
"Law and Politics in FCPA Prosecutions of Foreign Corporations" (2021) Revista Direito GV 17(2). DOI: 10.1590/2317-6172202124
Abstract: The expansive reach of US prosecutions addressing corporate and economic crimes has piqued the interest of many commentators and scholars. This is perhaps nowhere more evident than in the enforcement of the US Foreign Corrupt Practices
Act (“FCPA”) against non-American corporations. The US adopted the FCPA in 1977 to ban the payment of bribes to foreign public officials to obtain a business advantage—decades before most other countries did so and with jurisdiction over American and many foreign corporations. More than 40 years after the creation of the FCPA, this article reviews and outlines a growing interdisciplinary research agenda that considers historical, legal, and political influences on the application of the FCPA to foreign corporations. In addition to mapping the contours of this growing research agenda, the article identifies several challenges for such research and proposes potential avenues for future research that promise to deepen our understanding of why and when the US makes use of its expansive jurisdiction to prosecute foreign corporations for bribery of foreign public officials.
"Twenty Years of the OECD Anti-Bribery Convention: National Implementation and Hybridization" (2018) UBC Law Review 51(3): 613-670.
Abstract: This article looks back on the 20 years since the OECD Anti-Bribery Convention’s signing and examines how states have implemented the Convention. It seeks to contribute to growing scholarship in comparative international law and identify the similarities and differences in how states have implemented their shared international obligation to criminalize foreign bribery. Through case studies of four of the largest economies within the OECD—Canada, Germany, the United Kingdom, and the United
States—I show how preexisting national policies to combat corporate and economic crime have shaped the national criminalization of foreign bribery and the enforcement of these news laws.
BOOK PROJECT
I am currently working on a book manuscript titled International Law and the Diffusion of Regulatory Capitalism: The Implementation of the OECD Anti-Bribery Convention. The manuscript starts with the 1997 OECD Anti-Bribery Convention and the voluntary undertaking by the world’s wealthiest states to prohibit bribery in international business. The core of the manuscript examines the evolution of international anti-bribery law, long past signing ceremonies and national ratification. It looks to the 20 years since the entry into force of the OECD Anti-Bribery Convention in leading OECD states to trace national interpretations, applications, and re-interpretations of the Convention’s seemingly straightforward obligation to criminally prohibit bribery in international business.
I propose a novel theory on the making and re-making of international law that shows how the hard law obligation of international law can be augmented by national policy feedback, cross-national diffusion and international monitoring. Specifically, I argue that initial divergences in how states implemented the OECD Anti-Bribery Convention are giving way to a growing policy convergence. Today, leading OECD states share not only similar formal prohibitions against foreign bribery, but also similar enforcement strategies, resolution mechanisms, and goals in governing corporate wrongdoing through criminal law. These findings demonstrate both the significant impact of the OECD Anti-Bribery Convention on national policy and the diffuse and unanticipated nature of international law's influence.
I am currently working on a book manuscript titled International Law and the Diffusion of Regulatory Capitalism: The Implementation of the OECD Anti-Bribery Convention. The manuscript starts with the 1997 OECD Anti-Bribery Convention and the voluntary undertaking by the world’s wealthiest states to prohibit bribery in international business. The core of the manuscript examines the evolution of international anti-bribery law, long past signing ceremonies and national ratification. It looks to the 20 years since the entry into force of the OECD Anti-Bribery Convention in leading OECD states to trace national interpretations, applications, and re-interpretations of the Convention’s seemingly straightforward obligation to criminally prohibit bribery in international business.
I propose a novel theory on the making and re-making of international law that shows how the hard law obligation of international law can be augmented by national policy feedback, cross-national diffusion and international monitoring. Specifically, I argue that initial divergences in how states implemented the OECD Anti-Bribery Convention are giving way to a growing policy convergence. Today, leading OECD states share not only similar formal prohibitions against foreign bribery, but also similar enforcement strategies, resolution mechanisms, and goals in governing corporate wrongdoing through criminal law. These findings demonstrate both the significant impact of the OECD Anti-Bribery Convention on national policy and the diffuse and unanticipated nature of international law's influence.
WORKING PAPERS
"Transnational Legal Spillover? A Reappraisal of the OECD Anti-Bribery Convention" (with Michael O. Allen).
Abstract: Can prosecutions by US authorities help spread enforcement of anti-foreign bribery laws to other countries? In this article, we explore this question by re-examining an earlier study that found that US prosecutions of foreign defendants under the Foreign Corrupt Practices Act increases the likelihood that the defendant’s home state will enforces its own anti-foreign bribery laws. Using our updated and improved dataset, we find that the relationship reported in earlier scholarship does not hold. Instead, our research indicates that the exposure of states to risks of foreign bribery is an important and overlooked predictor of the likelihood of enforcement. We outline promising avenues for future research on transnational law enforcement relating to bribery in international business and in other areas.
"What’s the Purpose of Corporate Criminal Punishment? The Public’s View."
Abstract: Much of the debate over the use of corporate criminal law rests on assumptions about the public’s reaction: for example, that the public will attach a greater stigma to a corporation subject to a criminal prosecution than a regulatory action or that a verdict or admission of criminal wrongdoing by a corporation signals the gravity of wrongdoing to the public. This paper test this assumption through a survey experiment that varies the nature of the prosecution, the form of the resolution, as well as the gravity of the sanction. The findings of this research will have important implications for longstanding scholarly debates on corporate criminal law to corporations as well as policy implications on if and how the criminal law is best used to govern corporate conduct.
"Transnational Legal Spillover? A Reappraisal of the OECD Anti-Bribery Convention" (with Michael O. Allen).
Abstract: Can prosecutions by US authorities help spread enforcement of anti-foreign bribery laws to other countries? In this article, we explore this question by re-examining an earlier study that found that US prosecutions of foreign defendants under the Foreign Corrupt Practices Act increases the likelihood that the defendant’s home state will enforces its own anti-foreign bribery laws. Using our updated and improved dataset, we find that the relationship reported in earlier scholarship does not hold. Instead, our research indicates that the exposure of states to risks of foreign bribery is an important and overlooked predictor of the likelihood of enforcement. We outline promising avenues for future research on transnational law enforcement relating to bribery in international business and in other areas.
"What’s the Purpose of Corporate Criminal Punishment? The Public’s View."
Abstract: Much of the debate over the use of corporate criminal law rests on assumptions about the public’s reaction: for example, that the public will attach a greater stigma to a corporation subject to a criminal prosecution than a regulatory action or that a verdict or admission of criminal wrongdoing by a corporation signals the gravity of wrongdoing to the public. This paper test this assumption through a survey experiment that varies the nature of the prosecution, the form of the resolution, as well as the gravity of the sanction. The findings of this research will have important implications for longstanding scholarly debates on corporate criminal law to corporations as well as policy implications on if and how the criminal law is best used to govern corporate conduct.
MORE WRITING
Review of Negotiated Settlements in Bribery Cases: A Principled Approach, edited by Tina Soreide and Abiola Makinwa in International & Comparative Law Quarterly (2021) 70(1): 267-68.
"SNC-Lavalin: Canada's Anti-Bribery Laws Did Their Job" The Conversation (March 6, 2019).
Review of Interdisciplinary Perspectives on International Law and International Relations, edited by Jeffrey Dunoff and Mark Pollack, H-Net (2014).
Review of Private Standards and Global Governance, edited by Axel Marx, Miet Maertens, Johan Swinnen & Jan Wouters and Rethinking Private Authority: Agents and Entrepreneurs, by Jessica Green, International Journal of Constitutional Law (2015) 13(1): 330-37.
Review of Negotiated Settlements in Bribery Cases: A Principled Approach, edited by Tina Soreide and Abiola Makinwa in International & Comparative Law Quarterly (2021) 70(1): 267-68.
"SNC-Lavalin: Canada's Anti-Bribery Laws Did Their Job" The Conversation (March 6, 2019).
Review of Interdisciplinary Perspectives on International Law and International Relations, edited by Jeffrey Dunoff and Mark Pollack, H-Net (2014).
Review of Private Standards and Global Governance, edited by Axel Marx, Miet Maertens, Johan Swinnen & Jan Wouters and Rethinking Private Authority: Agents and Entrepreneurs, by Jessica Green, International Journal of Constitutional Law (2015) 13(1): 330-37.