Exclusivism, inclusivism and pluralism in the UK Bribery Act 2010. A UK‐Taiwan anti‐corporate bribery perspective

• Published date: 14 June 2013
• Pages: 169-187
• DOI: https://doi.org/10.1108/JITLP-Aug-2012-0012
• Date: 14 June 2013
• Author: Joseph Lee
• Subject Matter: Economics

Exclusivism, inclusivism and

pluralism in the UK Bribery

Act 2010

A UK-Taiwan anti-corporate bribery

perspective

Joseph Lee

College of Social Sciences and International Studies,

University of Exeter, Exeter, UK

Abstract

Purpose – The purpose of this paper is to identify mechanisms by which an international obligation

to prevent or punish corporate bribery can be enforced by a national law through trade relations.

Design/methodology/approach – The UK Bribery Act 2010 is an example of national law which

enforces OECD anti-bribery norms, with a view to effecting an institutional change in the law and

morality of other countries. Taiwan is used as a case study to look at how the UK Act may achieve its

intended purposes.

Findings – The paper identifies three modes of governance in the enforcement of the Act: legal

exclusivism, legal inclusivism, and legal pluralism. In the mode of legal exclusivism, the Act

disregards the morality of Taiwan so as to enforce the principle of transparency in trade. In the mode

of legal inclusivism, the Act allows UK multinational companies to make their own “laws” so that

anti-bribery norms can be more efficiently and effectively diffused. But in the mode of legal pluralism,

the Act is forced to acknowledge the law and morality of other countries (e.g. Taiwan), especially when

mutual legal assistance is crucial for cross-border investigation and prosecution.

Practical implications – Although this paper is based on an analysis of how the Act will interact

with the law and morality of Taiwan, the model developed provides a lens through which one can

show how an international norm enforced by a national law can function in a way that brings about

institutional change in other countries.

Originality/value – The paper provides a new insight into how legal norms can be diffused through

trade.

Keywords United Kingdom,Taiwan, Legislation, Bribery, Corporatebribery, Trade, Governance,

Corruption, Legalprinciples

Paper type Research paper

1. Introduction

In an effort to strengthen global anti-corruption governance and to remedy deficiencies

in the anti-bribery regime (Edmonds and Gay, 2010; OECD, 2008), the UK passed the

Bribery Act (the Act) in 2010 (Sullivan, 2011; Gentle, 2011; Monteith, 2011; Cropp, 2011).

The Act – replacing common law and other statutory offences of bribery [1] – carries a

moral mandate, required as well as inspired by a number of international anti-corruption

conventions and foreign laws, most notably the OECD convention against Bribery of

ForeignPublicOfficialsinInternational Business Transactions (the “OECD

convention”)[2] and the US Foreign Corrupt Practices Act 1977(the “FCPA”)[3].

The aim of the Act from the perspective of corporate governance is to clamp down

The current issue and full text archive of this journal is available at

www.emeraldinsight.com/1477-0024.htm

Journal of International Trade Law

and Policy

Vol. 12 No. 2, 2013

pp. 169-187

qEmerald Group Publishing Limited

1477-0024

DOI 10.1108/JITLP-Aug-2012-0012

The UK Bribery

Act 2010

169

on corrupt trade practices perpetrated by commercial entities, particularly mu ltinational

companies (MNCs), in the course of international trade. The Act can also have the effect

of bringing about institutional changes in countries where the MNCs operate. The

jurisdiction of the Act over home and foreign companies beyond the UK borders

illustrates an essential requirement to spread the norms of the OECD convention to the

fight against corruption in trade at a global level and thereby bring about institutional

changes. The Act also demonstrates the role of the nation state as regulator (Wagner,

2011)[4] in the increasingly MNC-dominated global economy (Lindahl, 2010). The

interplay between the Act and other legal and moral systems – that is the operations of

the Act, as governance through criminal law with the aim and effect of holding MNCs to

account for bribery[5] can be divided into three legal concepts:

(1) legal exclusivism whereby the law pronounces the moral truth and disregards

other moralities;

(2) legal inclusivism whereby the law recognises other “laws” as valid, in that it

pronounces and upholds the moral truth; and

(3) legal pluralism whereby the law is forced, as an inevitable consequence rath er

than an intended effect, to recognise other moralities.

Although the article is based on an expectation of how the Act will be enforced, the

three concepts represent the expected modes of governance of the enforcement of the

Act in the context of international trade.

2. Methodology

I will first discuss how the UK uses criminal law and regulation in its corporate

governance and how the Act fits into antecedent governance. This will be followed by

a discussion on how the Act reaches out beyond the UK borders.Then I will present the

three legal concepts which characterisethe interplay between the enforcement of the Act

and the law and morality of foreign countries. Finally, the discussion will be put in the

context of trade relations between the UK and Taiwanas a case study to illustrate how

the three legal concepts can affectthe enforcement of an international norm and influence

national laws. These concepts provide a framework through which problems can be

better mitigated and the enforcement systemcan be improved to increase its efficacy.

The three concepts interact dynamically and have implications in upholding the

moral truth of anti-bribery laws. Arguments based on the dichotomy of law and

morality (Betham, 1996), clarify what the Act is intended to achieve, as well as how and

to what extent the Act can achieve its intended objectives (Evans, 2004; James

and Lodge, 2003; Radaelli, 2000)[6]. The reason for this is that the intention of the Act is

not simply to impose legal norms on a foreign country’s legal system but also to effect

a transfer of a policy of anti-corporate bribery to the socio-political environment of the

foreign state. The composite of these effects is to bring about institutional change.

The issue of morality is fundamental to the Act, which enacts its moralnorms in the

form of criminal law, company law and public policy regulation. From a criminal law

perspective,the Act recognises the classical theory in criminology of punishing a culpable

wrong, as well as the utilitarian regulatorytool of the use of strict liability to achieve the

public good. From a company law perspective, the Act denies the protection of legal

personality for groups of companies. It holds the parent company responsiblefor bribery

carried out by a subsidiary and in effect lifts the veil of incorporation based on moral

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